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EXHIBIT 4.21
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AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of ____________
By and Among
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
XXXXXXXXXXX X. XXXXX,
as Regular Trustee
XXXX X. XXXXX, ESQ.
as Regular Trustee
XXXXXX XXXXX,
as Regular Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee
And
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
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CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
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310(a).......................................................................6.3
310(b)............................................................6.3(c); 6.3(d)
310(c)..............................................................Inapplicable
311(a)....................................................................2.2(b)
311(b)....................................................................2.2(b)
311(c)..............................................................Inapplicable
312(a)....................................................................2.2(a)
312(b)....................................................................2.2(b)
312(c)..............................................................Inapplicable
313(a).......................................................................2.3
313(b).......................................................................2.3
313(c).......................................................................2.3
313(d).......................................................................2.3
314(a).......................................................................2.4
314(b)..............................................................Inapplicable
314(c).......................................................................2.5
314(d)..............................................................Inapplicable
314(e).......................................................................2.5
314(f)..............................................................Inapplicable
315(a)...........................................................3.9(b); 3.10(a)
315(b)....................................................................2.7(a)
315(c)....................................................................3.9(a)
315(d)....................................................................3.9(b)
316(a).......................................................2.6; 7.5(b); 7.6(c)
316(b)..............................................................Inapplicable
316(c)..............................................................Inapplicable
317(a)......................................................................3.16
317(b)..............................................................Inapplicable
318(a)....................................................................2.1(c)
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* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
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ARTICLE 1 INTERPRETATION AND DEFINITIONS..........................................................................2
SECTION 1.1 Interpretation and Definitions...............................................................2
Affiliate.......................................................................................2
Authorized Officer..............................................................................2
Beneficial Owners...............................................................................2
Business Day ...................................................................................2
Business Trust Act..............................................................................3
Certificate.....................................................................................3
Certificate of Trust............................................................................3
Closing Date....................................................................................3
Code............................................................................................3
Commission......................................................................................3
Common Securities Holder........................................................................3
Common Security.................................................................................3
Common Security Certificate.....................................................................3
Corporate Trust Office..........................................................................3
Covered Person..................................................................................3
Debenture Issuer................................................................................3
Debenture Issuer Indemnified Person.............................................................4
Debenture Trustee...............................................................................4
Debentures......................................................................................4
Delaware Trustee................................................................................4
Depositary......................................................................................4
Depositary Participant..........................................................................4
Direct Action...................................................................................4
Distribution....................................................................................4
Exchange Act....................................................................................4
Fiduciary Indemnified Person....................................................................4
Fiscal Year.....................................................................................4
Global Security.................................................................................4
Guarantee.......................................................................................4
Holder..........................................................................................5
Indemnified Person..............................................................................5
Indenture.......................................................................................5
Indenture Event of Default......................................................................5
Investment Company..............................................................................5
Investment Company Act..........................................................................5
Investment Company Event........................................................................5
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Legal Action....................................................................................5
List of Holders.................................................................................5
Majority in Liquidation Amount..................................................................5
New York Stock Exchange.........................................................................6
Officers' Certificate...........................................................................6
Paying Agent....................................................................................6
Payment Amount..................................................................................6
Preferred Security..............................................................................6
Preferred Security Certificate..................................................................6
Person..........................................................................................6
Property Account................................................................................7
Property Trustee................................................................................7
Pro Rata........................................................................................7
Quorum..........................................................................................7
Redemption/Distribution Notice..................................................................7
Redemption Price................................................................................7
Regular Trustee.................................................................................7
Regulatory Capital Event........................................................................7
Related Party...................................................................................8
Responsible Officer.............................................................................8
Securities......................................................................................8
Securities Act..................................................................................8
Special Event...................................................................................8
Sponsor.........................................................................................8
Successor Delaware Trustee......................................................................8
Successor Entity................................................................................8
Successor Property Trustee......................................................................8
Successor Security..............................................................................8
Super Majority..................................................................................8
Tax Event.......................................................................................8
10% in Liquidation Amount.......................................................................9
Treasury Regulations............................................................................9
Trust Enforcement Event.........................................................................9
Trust Indenture Act.............................................................................9
Trustee.........................................................................................9
ARTICLE 2 TRUST INDENTURE ACT.....................................................................................9
SECTION 2.1 Trust Indenture Act; Application.............................................................9
SECTION 2.2 Lists of Holders of Securities..............................................................10
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SECTION 2.3 Reports by the Property Trustee.............................................................10
SECTION 2.4 Periodic Reports to the Property Trustee....................................................11
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................................11
SECTION 2.6 Trust Enforcement Events; Waiver............................................................11
SECTION 2.7 Trust Enforcement Event; Notice.............................................................13
ARTICLE 3 ORGANIZATION...........................................................................................14
SECTION 3.1 Name and Organization.......................................................................14
SECTION 3.2 Office......................................................................................14
SECTION 3.3 Purpose.....................................................................................14
SECTION 3.4 Authority...................................................................................14
SECTION 3.5 Title to Property of the Trust..............................................................15
SECTION 3.6 Powers and Duties of the Regular Trustees...................................................15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees........................................18
SECTION 3.8 Powers and Duties of the Property Trustee...................................................19
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.................................22
SECTION 3.10 Certain Rights of Property Trustee.........................................................24
SECTION 3.11 Delaware Trustee...........................................................................27
SECTION 3.12 Execution of Documents.....................................................................27
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.....................................28
SECTION 3.14 Duration of Trust..........................................................................28
SECTION 3.15 Mergers....................................................................................28
SECTION 3.16 Property Trustee May File Proofs of Claim..................................................30
ARTICLE 4 SPONSOR ...............................................................................................31
SECTION 4.1 Responsibilities of the Sponsor.............................................................31
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.......................................31
SECTION 4.3 Compensation of the Trustees................................................................32
ARTICLE 5 TRUST COMMON SECURITIES HOLDER.........................................................................32
SECTION 5.1 Debenture Issuer's Purchase of Common Securities............................................32
SECTION 5.2 Covenants of the Common Securities Holder...................................................32
ARTICLE 6 TRUSTEES...............................................................................................33
SECTION 6.1 Number of Trustees..........................................................................33
SECTION 6.2 Delaware Trustee; Eligibility...............................................................33
SECTION 6.3 Property Trustee; Eligibility...............................................................34
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally...........................34
SECTION 6.5 Initial Regular Trustees....................................................................35
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SECTION 6.6 Appointment, Removal and Resignation of Trustees............................................35
SECTION 6.7 Vacancies among Trustees....................................................................36
SECTION 6.8 Effect of Vacancies.........................................................................37
SECTION 6.9 Meetings....................................................................................37
SECTION 6.10 Delegation of Power........................................................................37
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business................................38
ARTICLE 7 TERMS OF SECURITIES....................................................................................38
SECTION 7.1 General Provisions Regarding Securities.....................................................38
SECTION 7.2 Distributions...............................................................................40
SECTION 7.3 Redemption of Securities....................................................................42
SECTION 7.4 Redemption Procedures.......................................................................42
SECTION 7.5 Voting Rights of Preferred Securities.......................................................44
SECTION 7.6 Voting Rights of Common Securities..........................................................46
SECTION 7.7 Paying Agent................................................................................47
SECTION 7.8 Listing.....................................................................................48
SECTION 7.9 Transfer of Securities......................................................................48
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates..........................................49
SECTION 7.11 Deemed Security Holders....................................................................50
SECTION 7.12 Global Securities..........................................................................50
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST...................................................................52
SECTION 8.1 Dissolution and Termination of Trust........................................................52
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust......................................53
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
DELAWARE TRUSTEES OR OTHERS............................................................................54
SECTION 9.1 Liability ..................................................................................54
SECTION 9.2 Exculpation.................................................................................54
SECTION 9.3 Fiduciary Duty..............................................................................55
SECTION 9.4 Indemnification.............................................................................56
SECTION 9.5 Outside Businesses..........................................................................59
ARTICLE 10 ACCOUNTING............................................................................................60
SECTION 10.1 Fiscal Year................................................................................60
SECTION 10.2 Certain Accounting Matters.................................................................60
SECTION 10.3 Banking....................................................................................61
SECTION 10.4 Withholding................................................................................61
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ARTICLE 11 AMENDMENTS AND MEETINGS...............................................................................62
SECTION 11.1 Amendments.................................................................................62
SECTION 11.2 Meetings of the Holders of Securities; Action by Written Consent...........................64
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE..............................................66
SECTION 12.1 Representations and Warranties of the Property Trustee.....................................66
SECTION 12.2 Representations and Warranties of the Delaware Trustee.....................................67
ARTICLE 13 MISCELLANEOUS.........................................................................................68
SECTION 13.1 Notices....................................................................................68
SECTION 13.2 Governing Law..............................................................................69
SECTION 13.3 Intention of the Parties...................................................................69
SECTION 13.4 Headings...................................................................................69
SECTION 13.5 Successors and Assigns.....................................................................69
SECTION 13.6 Partial Enforceability.....................................................................69
SECTION 13.7 Counterparts...............................................................................69
EXHIBITS
Exhibit A Form of Preferred Security Certificate
Exhibit B Form of Common Security Certificate
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AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the
"Declaration"), dated as of _______________, is entered into by and among
PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as sponsor (the
"Sponsor"), XXXXXXXXXXX X. XXXXX, XXXX X. XXXXX, ESQ. AND XXXXXX XXXXX, as the
initial regular trustees (collectively, the "Regular Trustees"), THE CHASE
MANHATTAN BANK, a New York banking corporation, as the initial property trustee
(the "Property Trustee") and CHASE MANHATTAN BANK DELAWARE, a Delaware
corporation, as the initial Delaware trustee (the "Delaware Trustee" and,
together with the Regular Trustees and the Property Trustee, the "Trustees"),
not in their individual capacities but solely as Trustees, and the holders, from
time to time, of undivided beneficial ownership interests in the assets of the
Trust to be issued pursuant to this Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor created Provident
Capital Trust __ (the "Trust"), a business trust under the Business Trust Act
(as defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of ____________ (the "Original Declaration"), and
a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on ___________;
WHEREAS, the sole purpose of the Trust shall be to issue and
sell certain securities representing undivided beneficial ownership interests in
the assets of the Trust, to invest the proceeds from such sales in the
Debentures issued by the Debenture Issuer and to engage in only those activities
necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders of the Securities representing undivided
beneficial ownership interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration.
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ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined
in the preamble above have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term
defined in the Trust Indenture Act has the same meaning when used in this
Declaration; and
(f) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include the feminine
form of a term, as applicable.
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Beneficial Owners" means, for Preferred Securities
represented by a Global Security, the Person who acquires an interest in the
Preferred Securities which is reflected on the records of the Depositary through
the Depositary Participants.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the Borough of Manhattan,
The City of New York are authorized or required by law or executive order to
remain closed or (iii) a day on which the Corporate Trust
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Office of the Trustee, or, with respect to the Securities of a series initially
issued to a Trust, the principal office of the Property Trustee under the
related Trust Agreement, is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning specified in the
Recitals hereto.
"Closing Date" means the date on which the Preferred
Securities are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission or
any successor thereto.
"Common Securities Holder" means Provident Financial Group,
Inc., or any successor thereto, in its capacity as purchaser and holder of all
of the Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security, substantially in the
form of Exhibit B hereto.
"Corporate Trust Office" means the principal office of the
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Declaration
is located at 000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000, Attention:
Corporate Trust Department.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder.
"Debenture Issuer" means Provident Financial Group, Inc., or
any successor thereto under the Indenture, in its capacity as issuer of the
Debentures under the Indenture.
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"Debenture Issuer Indemnified Person" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"Debenture Trustee" means The Chase Manhattan Bank, in its
capacity as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of debentures to be issued by
the Debenture Issuer under the Indenture and held by the Property Trustee.
"Delaware Trustee" has the meaning specified in Section 6.2.
"Depositary" means, with respect to Securities issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities.
"Depositary Participant" means a member of, or participant in,
the Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Preferred
Security Certificate.
"Guarantee" means the Guarantee Agreement, dated as of
___________, of the Sponsor in respect of the Securities.
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"Holder" means any holder of Securities, as registered on the
books and records of the Trust; provided, however, that in determining whether
the Holders of the requisite liquidation amount of Preferred Securities have
voted on any matter provided for in this Declaration, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Securities and if
the Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified
Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of _________,
between the Debenture Issuer and The Chase Manhattan Bank, as Trustee, pursuant
to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term
"Event of Default" in the Indenture.
"Investment Company" means an investment company as defined in
the Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of
an opinion of a nationally recognized independent counsel, to the effect that,
as a result of the occurrence of a change in law or regulation or a written
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"), there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in
the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s)
of outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities
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or Holders of outstanding Common Securities, voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"New York Stock Exchange" means the New York Stock Exchange,
Inc. or any successor thereto.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf of such Person
in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer on behalf of such Person 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 acting on behalf of such Person, such condition or covenant has been
complied with; provided, that the term "Officers' Certificate", when used with
reference to Regular Trustees who are natural persons shall mean a certificate
signed by two or more of the Regular Trustees which otherwise satisfies the
foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Certificate" means a definitive
certificate in fully registered form representing a Preferred Security,
substantially in the form of Exhibit A.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust,
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unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Account" has the meaning specified in Section
3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in
Section 7.4(a) hereto.
"Redemption Price" means the amount for which the Securities
will be redeemed, which amount will equal (i) the redemption price paid by the
Debenture Issuer to repay or redeem, in whole or in part, the Debentures held by
the Trust plus an amount equal to accumulated and unpaid Distributions on such
Securities through the date of their redemption or (ii) such lesser amount as
will be received by the Trust in respect of the Debentures so repaid or
redeemed.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Regulatory Capital Event" means the receipt by the Trust of
an opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision for interpreting
or applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof will not constitute, Tier 1
capital (or its then equivalent); PROVIDED, HOWEVER, that the distribution of
the Securities in connection with the liquidation of the Trust by the Debenture
Issuer shall not in and of itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event or an
Investment Company Event.
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"Related Party" means, with respect to the Sponsor, any direct
or wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer with direct responsibility for the administration of this
Declaration and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event
or an Investment Company Event.
"Sponsor" means Provident Financial Group, Inc., an Ohio
corporation, or any successor entity in a merger, consolidation, amalgamation or
replacement by or conveyance, transfer or lease of its properties substantially
as an entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)b.
"Super Majority" has the meaning specified in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change becomes effective
or proposed change, pronouncement, action or decision is announced on or after
the Closing Date, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to the United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible,
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in whole or in part, by the Debenture Issuer for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means
an Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this
Declaration conflicts with the duties imposed by Sections 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a grantor trust for
United States federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial ownership
interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee (i), except while the Preferred
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the
year of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, but in no event later than 120 days after the end of each
calendar year.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the
Preferred Securities may, by vote or written consent, on behalf of the Holders
of all of the Preferred Securities, waive any past Trust Enforcement Event in
respect of the Preferred Securities and its consequences, provided that, if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the
Trust Enforcement Event under the
Declaration shall also not be waivable; or
(ii) requires the consent or vote of the Holders
of greater than a majority in principal
amount of the Debentures (a "Super
Majority") to be waived under the Indenture,
the related Trust Enforcement Event under
the Declaration may only be waived by the
vote or written consent of the Holders of at
least the proportion in liquidation amount
of the Preferred Securities that the
relevant Super Majority represents of the
aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Trust Enforcement
Event with respect to the Preferred Securities arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any
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subsequent or other Trust Enforcement Event with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of a Trust Enforcement Event with respect to the
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Trust Enforcement Event with respect to the
Common Securities for all purposes of this Declaration without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the
Common Securities may, by vote or written consent, on behalf of the Holders of
all of the Common Securities, waive any past Trust Enforcement Event in respect
of the Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities
are deemed to have waived such Trust
Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the
Trust Enforcement Event under the
Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived under the Indenture,
except where the Holders of the Common
Securities are deemed to have waived such
Trust Enforcement Event under the
Declaration as provided below in this
Section 2.6(b), the Trust Enforcement Event
under the Declaration may only be waived by
the vote or written consent of the Holders
of at least the proportion in liquidation
amount of the Common Securities that the
relevant Super Majority represents of the
aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising
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therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event actually known to a Responsible Officer
of the Property Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all such defaults with respect to the
Securities, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Indenture Event of Default, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Property Trustee
shall be protected fully in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 501(1) and 501(2)
of the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of
which a Responsible Officer of the Property
Trustee charged with the administration of
this Declaration shall have actual
knowledge.
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ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Provident Capital Trust
__" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities, the Property Trustee and
the Delaware Trustee. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Provident Financial Group, Inc., Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
On 10 Business Days' written notice to the Holders of Securities, the Property
Trustee and the Delaware Trustee, the Regular Trustees may designate another
principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the gross proceeds from such sale to acquire
the Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified as a grantor trust for
United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the
Sponsor, the Holders of the Preferred Securities or Common Securities or the
Preferred Securities Beneficial Owners will take any position for United States
federal income tax purposes which is contrary to the classification of the Trust
as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the
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authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6(b), provided, that the registration statements
referred to in Section 3.6(b)(i), including any amendments thereto, shall be
signed by or on behalf of a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred
Securities and the Common Securities in the manner specified in Section 7.1 and
issue and sell the Preferred Securities and the Common Securities in accordance
with this Declaration; provided, however, that the Trust may issue no more than
one series of Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the Trust
other than the Securities, and the issuance of Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
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(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange
or any other national stock exchange or
automated quotation system for listing of
any Preferred Securities, the Guarantee and
the Debentures;
(ii) execute and file with the Commission one or
more registration statements on the
applicable forms prepared by the Sponsor,
including any amendments thereto, pertaining
to the Preferred Securities, the Guarantee
and the Debentures;
(iii) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary, in order to
qualify or register all or part of the
Preferred Securities in any State in which
the Sponsor has determined to qualify or
register such Preferred Securities for sale;
and
(iv) negotiate the terms of and execute an
underwriting agreement and other related
agreements providing for the sale of the
Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before taking
or refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of this Declaration and
the Securities;
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(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law,
that the Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered
under the Investment Company Act;
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(ii) causing the Trust to be classified as a
grantor trust for United States federal
income tax purposes; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated
as indebtedness of the Debenture Issuer for
United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust; and
(q) to execute and deliver all documents or instruments,
perform all duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and none of the Trustees (including
the Property Trustee) shall cause the Trust to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not and none of the Trustees (including the Property Trustee) shall cause
the Trust to:
(i) invest any proceeds received by the Trust
from holding the Debentures, but shall
distribute all such proceeds to Holders of
Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a
Trust purpose;
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(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets;
(vi) possess any power or otherwise act in such a
way as to vary the terms of the Securities
in any way whatsoever (except to the extent
expressly authorized in this Declaration or
by the terms of the Securities);
(vii) issue any securities or other evidences of
beneficial ownership of, or beneficial
interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration
or by the terms of the Securities, (A)
direct the time, method and place of
exercising any trust or power conferred upon
the Debenture Trustee with respect to the
Debentures, (B) waive any past default that
is waivable under the Indenture, (C)
exercise any right to rescind or annul any
declaration that the principal of all the
Debentures shall be due and payable, or (D)
consent to any amendment, modification or
termination of the Indenture or the
Debentures where such consent shall be
required unless the Trust shall have
received an opinion of counsel to the effect
that such modification will not cause more
than an insubstantial risk that the Trust
will be deemed an Investment Company
required to be registered under the
Investment Company Act, or the Trust will
not be classified as a grantor trust for
United States federal income tax purposes;
(ix) take any action inconsistent with the status
of the Trust as a grantor trust for United
States federal income tax purposes; or
(x) revoke any action previously authorized or
approved by vote of the Holders of the
Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 6.6. Such
vesting
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and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account (the
"Property Account") in the name of and under
the exclusive control of the Property
Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments
of funds made in respect of the Debentures
held by the Property Trustee, deposit such
funds into the Property Account and make
payments to the Holders of the Preferred
Securities and Holders of the Common
Securities from the Property Account in
accordance with Section 7.2. Funds in the
Property Account shall be held uninvested
until disbursed in accordance with this
Declaration. The Property Account shall be
an account that is maintained with a banking
institution the rating on whose long-term
unsecured indebtedness is at least equal to
the rating assigned to the Preferred
Securities by a "nationally recognized
statistical rating organization", within the
meaning of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect
the redemption of the Preferred Securities
and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued
by the Regular Trustees in accordance with
the terms of the Securities, engage in such
ministerial activities as so directed and as
shall be necessary or appropriate to effect
the distribution of the Debentures to
Holders of Securities upon the occurrence of
a Special Event.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
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(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; PROVIDED, HOWEVER, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest, principal or other required payments on the Debentures on the
date such interest, principal or other required payments are otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action") on or
after the respective due date specified in the Debentures. Notwithstanding
anything to the contrary in this Declaration or the Indenture, the Debenture
Issuer shall have the right to set-off any payment it is otherwise required to
make under the Indenture in respect of any Preferred Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Preferred
Security or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed
to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment
in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if a Trust Enforcement Event actually known to a
Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
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The Property Trustee shall exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Property Trustee shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust
Enforcement Event and after the curing or
waiving of all such Trust Enforcement Events
that may have occurred:
a. the duties and obligations of the
Property Trustee shall be determined
solely by the express provisions of
this Declaration and the Property
Trustee shall not be liable except
for the performance of such duties
and obligations as are specifically
set forth in this Declaration, and
no implied covenants or obligations
shall be read into this Declaration
against the Property Trustee; and
b. in the absence of bad faith on the
part of the Property Trustee, the
Property Trustee may conclusively
rely, as to the truth of the
statements and the correctness of
the opinions expressed therein, upon
any certificates or opinions
furnished to the Property Trustee
and conforming to the requirements
of this Declaration; but in the case
of any such certificates or opinions
that by any provision hereof are
specifically required to be
furnished to the Property Trustee,
the Property Trustee
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shall be under a duty to examine the
same to determine whether or not
they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by
a Responsible Officer of the Property
Trustee, unless it shall be proved that the
Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable
with respect to any action taken or omitted
to be taken by it without negligence, in
good faith in accordance with the direction
of the Holders of not less than a Majority
in Liquidation Amount of the Securities
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Property Trustee, or
exercising any trust or power conferred upon
the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall
require the Property Trustee to expend or
risk its own funds or otherwise incur
personal financial liability in the
performance of any of its duties or in the
exercise of any of its rights or powers, if
it shall have reasonable grounds for
believing that the repayment of such funds
or liability is not reasonably assured to it
under the terms of this Declaration or
indemnity reasonably satisfactory to the
Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with
respect to the custody, safe- keeping and
physical preservation of the Debentures and
the Property Account shall be to deal with
such property in a similar manner as the
Property Trustee deals with similar property
for its own account, subject to the
protections and limitations on liability
afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or
assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it
except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee
need not be segregated from
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other funds held by it except in relation to
the Property Account maintained by the
Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise
required by law; and
(viii) the Property Trustee shall not be
responsible for monitoring the compliance by
the Regular Trustees or the Sponsor with
their respective duties under this
Declaration, nor shall the Property Trustee
be liable for any default or misconduct of
the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or
refraining from acting upon any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document
believed by it to be genuine and to have
been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this
Declaration shall be sufficiently evidenced
by an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem
it desirable that a matter be proved or
established before taking, suffering or
omitting any action hereunder, the Property
Trustee (unless other evidence is herein
specifically prescribed) may, in the absence
of bad faith on its part, request and
conclusively rely upon an Officers'
Certificate which, upon receipt of such
request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to
see to any recording, filing or registration
of any instrument (including any financing
or continuation statement or any filing
under tax or securities laws) or any
rerecording, refiling or registration
thereof;
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(v) the Property Trustee may consult with
counsel of its choice or other experts and
the advice or opinion of such counsel and
experts with respect to legal matters or
advice within the scope of such experts'
area of expertise shall be full and complete
authorization and protection in respect of
any action taken, suffered or omitted by it
hereunder in good faith and in accordance
with such advice or opinion, such counsel
may be counsel to the Sponsor or any of its
Affiliates, and may include any of its
employees. The Property Trustee shall have
the right at any time to seek instructions
concerning the administration of this
Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Declaration at
the request or direction of any Holder,
unless such Holder shall have provided to
the Property Trustee security and indemnity,
reasonably satisfactory to the Property
Trustee, against the costs, expenses
(including attorneys' fees and expenses and
the expenses of the Property Trustee's
agents, nominees or custodians) and
liabilities that might be incurred by it in
complying with such request or direction,
including such reasonable advances as may be
requested by the Property Trustee; provided
that, nothing contained in this Section
3.10(a) shall be taken to relieve the
Property Trustee, upon the occurrence of a
Trust Enforcement Event, of its obligation
to exercise the rights and powers vested in
it by this Declaration;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or
matters stated in any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document,
but the Property Trustee, in its discretion,
may make such further inquiry or
investigation into such facts or matters as
it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents, custodians, nominees or
attorneys and the Property Trustee shall not
be responsible for any misconduct or
negligence on the part of any agent or
attorney appointed with due care by it
hereunder;
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(ix) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust
and the Holders of the Securities, and the
signature of the Property Trustee or its
agents alone shall be sufficient and
effective to perform any such action and no
third party shall be required to inquire as
to the authority of the Property Trustee to
so act or as to its compliance with any of
the terms and provisions of this
Declaration, both of which shall be
conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this
Declaration the Property Trustee shall deem
it desirable to receive instructions with
respect to enforcing any remedy or right or
taking any other action hereunder, the
Property Trustee (i) may request
instructions from the Holders of the
Securities which instructions may only be
given by the Holders of the same proportion
in liquidation amount of the Securities as
would be entitled to direct the Property
Trustee under the terms of the Securities in
respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy
or right or taking such other action until
such instructions are received, and (iii)
shall be protected in conclusively relying
on or acting in or accordance with such
instructions;
(xi) except as otherwise expressly provided by
this Declaration, the Property Trustee shall
not be under any obligation to take any
action that is discretionary under the
provisions of this Declaration;
(xii) the Property Trustee shall not be liable for
any action taken, suffered or omitted to be
taken by it without negligence, in good
faith and reasonably believed by it to be
authorized or within the discretion, rights
or powers conferred upon it by this
Declaration;
(xiii) without prejudice to any other rights
available to the Property Trustee under
applicable law, when the Property Trustee
incurs expenses or renders services in
connection with a bankruptcy, such expenses
(including the fees and expenses of its
counsel) and the compensation for such
services are intended to constitute expenses
of administration under any bankruptcy law
or law relating to creditors rights
generally;
(xiv) the Property Trustee shall not be charged
with knowledge of a Trust Enforcement Event
unless a Responsible Officer of the Property
Trustee obtains actual knowledge of such
event or the Property
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Trustee receives written notice of such
event from Holders holding more than a
Majority in Liquidation Amount of the
Preferred Securities; and
(xv) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust
and the Holders of such Securities, and the
signature of the Property Trustee or one of
its agents shall by itself be sufficient and
effective to perform any such action and no
third party shall be required to inquire as
to the authority of the Property Trustee to
so act or as to its compliance with any of
the terms and provisions of this
Declaration, both of which shall be
conclusively evidenced by the Property
Trustee's or its agent's taking such action.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 6.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 6.2, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807(a) of the Business Trust Act. In the event the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder
with respect to the Trust, the Delaware Trustee shall be entitled to all of the
same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
that the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
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SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until dissolved pursuant to the
provisions of Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not 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 Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) if the Trust is not the successor, such
successor entity (the "Successor Entity")
either:
a. expressly assumes all of the
obligations of the Trust with
respect to the 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 Debenture Issuer expressly appoints a
trustee of such Successor Entity that
possesses the same powers and duties as the
Property Trustee as the holder of the
Debentures;
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(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor
Securities will be listed upon notification
of issuance, on any national securities
exchange or with any other or organization
on which the Preferred Securities are then
listed or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not cause the Preferred Securities
(including any Successor Securities) to be
downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not adversely affect the rights,
preferences and privileges of the Holders of
the Preferred Securities (including any
Successor Securities) in any material
respect;
(vi) such Successor Entity has a purpose
substantially identical to that of the
Trust;
(vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance,
transfer or lease the Sponsor has received
an opinion of independent counsel to the
Trust experienced in such matters to the
effect that:
a. such merger, consolidation,
amalgamation, replacement,
conveyance, transfer or lease does
not adversely affect the rights,
preferences and privileges of the
Holders of the Preferred Securities
(including any Successor Securities)
in any material respect;
b. following such merger,
consolidation, amalgamation,
replacement, conveyance, transfer or
lease neither the Trust nor the
Successor Entity will be required to
register as an Investment Company;
and
c. following such merger,
consolidation, amalgamation or
replacement, the Trust (or the
Successor Entity) will continue to
be classified as a grantor trust for
United States federal income tax
purposes;
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities
and guarantees the obligations of such
Successor
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Entity under the Successor Securities at
least to the extent provided by the
Securities Guarantee; and
(ix) such Successor Entity expressly assumes all
of the obligations of the Trust with respect
to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in aggregate liquidation amount of
the Securities, consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it, if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes and each Holder of the Securities not
to be treated as owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation,
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expenses, disbursements and advances of the Property Trustee, its agents and
counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission
under the Securities Act or the Exchange Act one or more registration statements
on the applicable forms, including any amendments thereto, pertaining to the
Preferred Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the NASDAQ Stock
Market for listing upon notice of issuance of any Preferred Securities, the
Guarantee and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the
Trust an underwriting agreement and other related agreements providing for the
sale of the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the
Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
indemnify the Property Trustee and the Delaware Trustee for, and to hold each of
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Property Trustee or the
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Delaware Trustee, as the case may be, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Declaration.
SECTION 4.3 Compensation of the Trustees.
The Sponsor agrees to pay the Property Trustee and the
Delaware Trustee from time to time such compensation for all services rendered
by the Property Trustee and the Delaware Trustee hereunder as may be mutually
agreed upon in writing by the Sponsor and the Property Trustee or the Delaware
Trustee, as the case may be, and, except as otherwise expressly provided herein,
to reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad
faith.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date, the Debenture Issuer will purchase all of
the Common Securities issued by the Trust on the Closing Date, for an amount at
least equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding,
the Common Securities Holder will covenant (i) (subject to Section 7.9(b))to
maintain directly 100% ownership of the Common Securities, (ii) to cause the
Trust to remain a statutory business trust and not to voluntarily dissolve, wind
up, liquidate or be terminated, except as permitted by this Declaration, (iii)
to use its commercially reasonable efforts to ensure that the Trust will not be
an investment company for purposes of the Investment Company Act, and (iv) to
take no action which would be reasonably
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likely to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities or by written consent in lieu of such
meeting; provided that the number of Trustees shall be at least three; and
provided further that (1) the Delaware Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law; (2) at
least one Regular Trustee is an employee or officer of, or is affiliated with,
the Sponsor; and (3) one Trustee shall be the Property Trustee for so long as
this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets
the applicable requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may
be the Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
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SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing
business under the laws of the United States
of America or any State or Territory thereof
or of the District of Columbia, or a
corporation or other Person permitted by the
Commission to act as an institutional
trustee under the Trust Indenture Act,
authorized under such laws to exercise
corporate trust owners, having a combined
capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to
supervision or examination by federal,
State, Territorial or District of Columbia
authority. If such corporation publishes
reports of condition at least annually,
pursuant to law or to the requirements of
the supervising or examining authority
referred to above, then for the purposes of
this Section 6.3(a)(ii), the combined
capital and surplus of such corporation
shall be deemed to be its combined capital
and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 6.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
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SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
Xxxxxxxxxxx X. Xxxxx, Xxxx X. Xxxxx, Esq. and Xxxxxx Xxxxx,
the business address of all of whom is c/o Provident Financial Group, Inc., Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but
prior to the occurrence of an Indenture
Event of Default), by vote of the Holders of
a Majority in Liquidation Amount of the
Common Securities voting as a class at a
meeting of the Holders of the Common
Securities; and
(iii) after the issuance of the Preferred
Securities and the occurrence of an
Indenture Event of Default, by vote of the
Holders of a majority in Liquidation Amount
of the Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 6.6(a) until a successor Trustee possessing
the qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
or its successor shall have been appointed, until his death or its dissolution
or until his or its removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
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(i) No such resignation of the Trustee that acts
as the Property Trustee shall be effective:
a. until a Successor Property Trustee
has been appointed and has accepted
such appointment by instrument
executed by such Successor Property
Trustee and delivered to the Trust,
the Sponsor and the resigning
Property Trustee; or
b. until the assets of the Trust have
been completely liquidated and the
proceeds thereof distributed to the
Holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been
appointed and has accepted such appointment
by instrument executed by such Successor
Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee, as the case may be, shall have been appointed and accepted appointment
as provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 6.1, or if the number of
Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees
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or, if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by a written
consent of such Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any natural person over the age of 21 his, her
or its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
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(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred
Securities of the Trust have an aggregate
liquidation amount with respect to the
assets of the Trust of ____________________
($___________) with respect to the closing
of the sale of Preferred Securities. The
Preferred Securities are hereby designated
for identification purposes only as "__%
Preferred Securities" (the "Preferred
Securities"). The Preferred Security
Certificates evidencing the Preferred
Securities shall be substantially in the
form of Exhibit A to this Declaration, with
such changes and additions thereto or
deletions therefrom as may be required by
ordinary usage, custom or practice or to
conform to the rules of any stock exchange
on which the Preferred Securities are listed
or quoted.
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(ii) Common Securities. The Common Securities of
the Trust have an aggregate liquidation
amount with respect to the assets of the
Trust of _______________________________
($_________) with respect to the closing of
the sale of Common Securities. The Common
Securities are hereby designated for
identification purposes only as "__% Common
Securities" (the "Common Securities" and,
together with the Preferred Securities, the
"Securities"). The Common Security
Certificates evidencing the Common
Securities shall be substantially in the
form of Exhibit B to this Declaration, with
such changes and additions thereto or
deletions therefrom as may be required by
ordinary usage, custom or practice.
(b) Payment of Distributions on, and payment of the Redemption
Price upon a redemption of, the Preferred Securities and the Common Securities,
as applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as
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may be required to comply with any law or with any rule or regulation of any
stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be
valid until authenticated by the manual signature of an authorized officer of
the Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Certificates representing
Preferred Securities for original issue. The aggregate number of Preferred
Securities outstanding at any time shall not exceed the liquidation amount set
forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating agent
may authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, subject to Section 9.1(b), the Securities so issued shall be deemed
to be validly issued, fully paid and non-assessable undivided beneficial
ownership interests in the assets of the Trust.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the terms of the Securities, the
Guarantee, the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or
similar rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive
cumulative cash Distributions at the rate per annum of __% of the stated
liquidation amount of $25 per Security. The amount of Distributions payable for
any period shall be computed on the basis of a 360-day year of twelve 30- day
months. The amount of distributions payable for any period shorter than a full
quarterly distribution period shall be computed on the basis of a 30-day month
and for periods of less than a month, the actual number of days elapsed per
30-day month. Subject to Section 7.1(b), Distributions shall be made on the
Preferred Securities and the Common Securities on a Pro Rata
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basis. Distributions on the Securities shall, from the date of original issue,
accumulate and be cumulative and shall be payable quarterly, in arrears, on each
March 31, June 30, September 30 and December 31, commencing __________________,
when, as and if available for payment, by the Property Trustee, except as
otherwise described below. Distributions are payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound quarterly at the rate of ____% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a
payment of interest, premium and/or principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds are available for
that purpose, make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the
Holders thereof as they appear on the register of the Trust as of the close of
business on the relevant record dates. While the Preferred Securities are
represented by one or more Global Securities, the relevant record dates shall be
the close of business on the Business Day next preceding such Distribution
payment date, unless a different regular record date is established or provided
for the corresponding interest payment date on the Debentures. The relevant
record dates for the Common Securities shall be the same as for the Preferred
Securities. If the Preferred Securities shall not continue to remain represented
by one or more Global Securities, the relevant record dates for the Preferred
Securities shall be selected by the Regular Trustees and shall be at least one
Business Day prior to the relevant payment dates. At all times, the Distribution
payment dates shall correspond to the interest payment dates on the Debentures.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, shall cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such payment date.
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(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of
the Debentures held by the Trust, whether at the stated maturity of the
Debentures or upon earlier redemption as provided in the Indenture, the proceeds
from such repayment or redemption shall be simultaneously applied Pro Rata
(subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid or
redeemed at the Redemption Price. Holders shall be given not less than 30 nor
more than 60 days notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, such Securities until such certificates are
presented to the Sponsor or its agent for transfer or reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For
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all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice
requirements set forth in Section 7.4(a) above, if Securities are to be
redeemed, then (i) with respect to Preferred Securities represented by one or
more Global Securities, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or maturity
of the Debentures, the Property Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to the Preferred
Securities and will give the Depositary irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred Securities and (ii)
with respect to Securities not represented by one or more Global Securities,
provided that the Debenture Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Paying Agent will pay the relevant Redemption Price to the
Holders of such Securities by check mailed to the address of the relevant Holder
appearing on the register of the Trust on the redemption date. If any date fixed
for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the then applicable rate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. If a Redemption/Distribution Notice shall
have been given and funds deposited or paid as required, then immediately prior
to the close of business on the date of such deposit or payment, Distributions
will cease to accrue on the Securities called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except the right
of the Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities that have
been called for redemption, except in the case of any Securities being redeemed
in part, any portion thereof not to be redeemed.
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(d) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Debenture Issuer
or its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1, Section 6.6 and
this Article 7 and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Preferred Securities
shall have no voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in Section 7.5(d)
below, the Holders of a Majority in Liquidation Amount of the Preferred
Securities voting separately as a class have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or to direct the exercise of any trust or power conferred upon
the Property Trustee under the Declaration, including the right to direct the
Property Trustee, as Holder of the Debentures, to (i) exercise the remedies
available to it under the Indenture as a Holder of the Debentures; (ii) consent
to any amendment or modification of the Indenture or the Debentures where such
consent shall be required or (iii) waive any past default and its consequences
that is waivable under Section 5.13 of the Indenture; provided, however, that if
an Indenture Event of Default has occurred and is continuing, then the Holders
of 25% of the aggregate liquidation amount of the Preferred Securities may
direct the Property Trustee to declare the principal of and interest on the
Debentures due and payable; provided, further, that where a consent or action
under the Indenture would require the consent or act of the Holders of more than
a majority of the aggregate principal amount of Debentures affected thereby,
only the Holders of the percentage of the aggregate stated liquidation amount of
the Preferred Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to give such consent to take
such action.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of Preferred Securities has made a written
request, such Holder of Preferred Securities may, to the extent permitted by
applicable law, institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default received
from the Debenture Issuer with respect to the
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Debentures. Such notice shall state that such Indenture Event of Default also
constitutes a Trust Enforcement Event. Except with respect to directing the
time, method, and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described in
clause 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that the Trust will not fail to
be classified as a grantor trust for United States federal income tax purposes
as a result of such action, and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the
Holder of the Debentures, is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment or modification as
directed by not less than 66-2/3% of the aggregate liquidation amount of the
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of the Holders of more
than a 66-2/3%of the aggregate principal amount of the Debentures, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in aggregate stated liquidation amount of the Securities.
The Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Securities unless the Property Trustee has
obtained an opinion of independent tax counsel to the effect that the Trust will
not be classified as other than a grantor trust for United States federal income
tax purposes as a result of such action, and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of Preferred Securities
shall be required for the Trust to redeem and cancel Preferred Securities or
distribute Debentures in accordance with this Declaration and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Securities that are owned at such
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time by the Debenture Issuer, any Regular Trustee or any entity directly or
indirectly controlled by, or under direct or indirect common control with, the
Debenture Issuer or any Regular Trustee, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Securities were not outstanding; provided, however, that Persons otherwise
eligible to vote to whom the Debenture Issuer or any of its subsidiaries have
pledged Preferred Securities may vote or consent with respect to such pledged
Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the
Preferred Securities shall have no rights to appoint or remove the Trustees, who
may be appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is
continuing, the Trustees may be removed at such time only by a Majority in
Liquidation Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6
or Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the
Common Securities shall be entitled, in accordance with Article VI of this
Declaration, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust
Enforcement Events with respect to the Preferred Securities have been cured,
waived, or otherwise eliminated and subject to the requirement of the Property
Trustee obtaining a tax opinion in certain circumstances set forth in this
paragraph (c), the Holders of a Majority in Liquidation Amount of the Common
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Declaration, including the right to direct the Property Trustee, as Holder of
the Debentures, to (i) exercise the remedies available to it under the Indenture
as a Holder of the Debentures, (ii) consent to any amendment or modification of
the Indenture or the Debentures where such consent shall be required or (iii)
waive any past default and its consequences that is waivable under Section 5.13
of the Indenture; provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby, only
the Holders of the percentage of the aggregate stated liquidation amount of the
Common Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in
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clause 7.6(c)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that, as a result of such
action, for United States federal income tax purposes the Trust will not fail to
be classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of Common Securities has made a written request,
such Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in
book-entry only form, the Trust shall maintain in the Borough of Manhattan, City
of New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may appoint
the paying agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to the Holders. The Trust shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent. The Property Trustee shall initially act as Paying Agent for the
Securities. In the event the Property Trustee shall no longer be the Paying
Agent, the Regular Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Debenture Issuer) to act as Paying Agent. The
Paying Agent shall be
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permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Debenture Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred
Securities shall be freely transferable.
(ii) The Holder of the Common Securities may not
transfer the Common Securities except (A) in
compliance with a consolidation, merger,
sale, conveyance or lease of the Sponsor in
compliance with Article VIII of the
Indenture or (B) to the Sponsor or an
Affiliate thereof in compliance with
applicable law, including the Securities Act
and applicable state securities and blue sky
laws. To the fullest extent permitted by
law, any attempted transfer of the Common
Securities other than as set forth in the
immediately preceding sentence shall be null
and void.
(c) The Trust shall cause to be kept at the Corporate Trust
Office of the Property Trustee a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Trust shall
provide for the registration of Preferred Securities and of transfers of
Preferred Securities. The Property Trustee is hereby appointed "Security
Registrar" for the purpose of registering Preferred Securities and transfers of
Preferred Securities as herein provided.
(d) Upon surrender for registration of transfer of any
Security at an office or agency of the Trust designated for such purpose, the
Trust shall execute, and the Property Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of any authorized denominations and of a like aggregate principal amount.
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(e) At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities.
(h) If the Securities are to be redeemed in part, the Trust
shall not be required (A) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of the Trustees,
the Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 7.10, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall
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constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the register of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or
more Global Securities. If the Preferred Securities are to be issued in the form
of one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered
in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no
transfer of this Preferred Security (other than a transfer of this
Preferred Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Preferred Security Certificate is
presented by an authorized representative of the Depositary to
Provident Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as requested by
an authorized representative of the Depositary (and any payment hereon
is made to Cede & Co. or to such other entity as is requested by an
authorized
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representative of the Depositary), 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."
Preferred Securities not represented by a Global Security
issued in exchange for all or a part of a Global Security pursuant to this
Section 7.12 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Property Trustee. Upon
execution and authentication, the Property Trustee shall deliver such Preferred
Securities not represented by a Global Security to the Persons in whose names
such definitive Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Preferred Securities, deal with the
Depositary as the authorized representative of the Holders for the purposes of
exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established
by law and agreements between such owners and depository participants provided,
that no such agreement shall give any rights to any Person against the Trust or
the Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Preferred Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.
If at any time the Depositary for any Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Preferred Securities or
if at any time the Depositary for such Preferred Securities shall no longer be
eligible under this Section 7.12, the Trust shall appoint a successor Depositary
with respect to such Preferred Securities. If a successor Depositary for such
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that such Preferred Securities be represented by one or more Global
Securities shall
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no longer be effective and the Trust shall execute, and the Property Trustee
will authenticate and deliver, Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security representing such Preferred
Securities in exchange for such Global Security.
The Trust may at any time and in its sole discretion determine
that the Preferred Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security. In such event
the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security representing such Preferred Securities, in exchange for
such Global Security.
Notwithstanding any other provisions of this Declaration
(other than the provisions set forth in Section 7.9), Global Securities may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of Beneficial Owners in a Global Security may be
transferred or exchanged for Preferred Securities not represented by a Global
Security and Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution
or its equivalent with respect to the
Sponsor; the dissolution of the Trust after
obtaining the consent of the Holders of at
least a Majority in Liquidation Amount of
the Securities to dissolve the Trust; or the
revocation of the Sponsor's charter and the
expiration of 90 days after the date of
revocation without a reinstatement thereof;
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(iii) the entry of a decree of judicial
dissolution of the Sponsor or the Trust;
(iv) the time when all of the Securities shall
have been called for redemption and the
amounts then due shall have been paid to the
Holders in accordance with this Agreement;
(v) at the Sponsor's election by notice and
direction to the Property Trustee to
distribute the Debentures to the Holders of
the Securities in exchange for all of the
Securities, subject to the receipt of any
necessary approvals by the Federal Reserve
that may then be required under the
applicable capital guidelines or policies of
the Federal Reserve; provided that the
Sponsor will be required to obtain an
opinion of an independent counsel that the
distribution of the Debentures will not be
taxable to the Holders of the Preferred
Securities for United States federal income
tax purposes; or
(vi) the time when all of the Regular Trustees
and the Sponsor shall have consented to
dissolution of the Trust provided such
action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2,4.3 and Article 9 shall
survive the termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the
Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $25 per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and
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unpaid interest equal to accumulated and unpaid Distributions on, such
Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a Pro
Rata basis. The Holders of the Common Securities will be entitled to receive
distributions upon any such Liquidation Pro Rata with the Holders of the
Preferred Securities except that if an Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a preference over the
Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the
return of any portion of the capital
contributions (or any return thereon) of the
Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or
to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
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(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Person and any
Indemnified Person; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
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practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person
shall be entitled to consider such interests
and factors as it desires, including its own
interests, and shall have no duty or
obligation to give any consideration to any
interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act
under such express standard and shall not be
subject to any other or different standard
imposed by this Declaration or by applicable
law.
SECTION 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Debenture
Issuer Indemnified Person who was or is a
party or is threatened to be made a party to
any threatened, pending or completed action
or suit by or in the right of the Trust to
procure a judgment in its favor by reason of
the fact that he is or was a
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Debenture Issuer Indemnified Person against
expenses (including attorneys' fees)
actually and reasonably incurred by him in
connection with the defense or settlement of
such action or suit if he acted in good
faith and in a manner he reasonably believed
to be in or not opposed to the best
interests of the Trust and except that no
such indemnification shall be made in
respect of any claim, issue or matter as to
which such Debenture Issuer Indemnified
Person shall have been adjudged to be liable
to the Trust unless and only to the extent
that the Court of Chancery of Delaware or
the court in which such action or suit was
brought shall determine upon application
that, despite the adjudication of liability
but in view of all the circumstances of the
case, such person is fairly and reasonably
entitled to indemnity for such expenses
which such Court of Chancery or such other
court shall deem proper.
(iii) Any indemnification under paragraphs (i) and
(ii) of this Section 9.4(a) (unless ordered
by a court) shall be made by the Debenture
Issuer only as authorized in the specific
case upon a determination that
indemnification of the Debenture Issuer
Indemnified Person is proper in the
circumstances because he has met the
applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by
a majority vote of a quorum consisting of
such Regular Trustees who were not parties
to such action, suit or proceeding, (2) if
such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees)
incurred by a Debenture Issuer Indemnified
Person in defending a civil, criminal,
administrative or investigative action, suit
or proceeding referred to in paragraphs (i)
and (ii) of this Section 9.4(a) shall be
paid by the Debenture Issuer in advance of
the final disposition of such action, suit
or proceeding upon receipt of an undertaking
by or on behalf of such Debenture Issuer
Indemnified Person to repay such amount if
it shall ultimately be determined that he is
not entitled to be indemnified by the
Debenture Issuer as authorized in this
Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the
Debenture Issuer if a determination is
reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees,
(ii) if such a quorum is not obtainable,
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or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs,
by independent legal counsel in a written
opinion or (iii) the Common Security Holder
of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or
the Common Security Holder at the time such
determination is made, such Debenture Issuer
Indemnified Person acted in bad faith or in
a manner that such person did not believe to
be in or not opposed to the best interests
of the Trust, or, with respect to any
criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had
reasonable cause to believe his conduct was
unlawful. In no event shall any advance be
made in instances where the Regular
Trustees, independent legal counsel or
Common Security Holder reasonably determine
that such person deliberately breached his
duty to the Trust or its Common or Preferred
Security Holders.
(v) The indemnification and advancement of
expenses provided by, or granted pursuant
to, the other paragraphs of this Section
9.4(a) shall not be deemed exclusive of any
other rights to which those seeking
indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of
the Debenture Issuer or Preferred Security
Holders of the Trust or otherwise, both as
to action in his official capacity and as to
action in another capacity while holding
such office. All rights to indemnification
under this Section 9.4(a) shall be deemed to
be provided by a contract between the
Debenture Issuer and each Debenture Issuer
Indemnified Person who serves in such
capacity at any time while this Section
9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall
not affect any rights or obligations then
existing.
(vi) The Debenture Issuer or the Trust may
purchase and maintain insurance on behalf of
any person who is or was a Debenture Issuer
Indemnified Person against any liability
asserted against him and incurred by him in
any such capacity, or arising out of his
status as such, whether or not the Debenture
Issuer would have the power to indemnify him
against such liability under the provisions
of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a),
references to "the Trust" shall include, in
addition to the resulting or surviving
entity, any constituent entity (including
any constituent of a constituent)
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absorbed in a consolidation or merger, so
that any person who is or was a director,
trustee, officer or employee of such
constituent entity, or is or was serving at
the request of such constituent entity as a
director, trustee, officer, employee or
agent of another entity, shall stand in the
same position under the provisions of this
Section 9.4(a) with respect to the resulting
or surviving entity as he would have with
respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant
to, this Section 9.4(a) shall, unless
otherwise provided when authorized or
ratified, continue as to a person who has
ceased to be a Debenture Issuer Indemnified
Person and shall inure to the benefit of the
heirs, executors and administrators of such
a person. The obligation to indemnify as set
forth in this Section 9.4(a) shall survive
the resignation or removal of the Delaware
Trustee or the Property Trustee or the
termination of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of this Declaration. In addition, the
Debenture Issuer has agreed in the Indenture to pay the fees and expenses of the
Delaware Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be
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deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
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to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
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ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have
first received an Officers' Certificate from
each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities);
(ii) unless, in the case of any proposed
amendment which affects the rights, powers,
duties, obligations or immunities of the
Property Trustee, the Property Trustee shall
have first received:
a. an Officers' Certificate from each
of the Trust and the Sponsor that
such amendment is permitted by, and
conforms to, the terms of this
Declaration (including the terms of
the Securities) and that all
conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
b. an opinion of counsel (who may be
counsel to the Sponsor or the Trust)
that such amendment is permitted by,
and conforms to, the terms of this
Declaration (including the terms of
the Securities) and that all
conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
(iii) to the extent the result of such amendment
would be to:
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a. cause the Trust to be classified
other than as a grantor trust for
United States federal income tax
purposes;
b. reduce or otherwise adversely affect
the powers of the Property Trustee
in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be
an Investment Company required to be
registered under the Investment
Company Act.
(c) If the Trust has issued any Securities that remain
outstanding:
(i) any amendment that would (a) change the
amount or timing of any distribution of the
Securities or otherwise adversely affect the
amount of any distribution required to be
made in respect of the Securities as of a
specified date or (b) restrict the right of
a Holder of Securities to institute suit for
the enforcement of any such payment on or
after such date, will entitle the Holders of
such Securities, voting together as a single
class, to vote on such amendment or proposal
and such amendment or proposal shall not be
effective except with the approval of each
of the Holders of the Securities affected
thereby; and
(ii) any amendment that would (a) adversely
affect the powers, preferences or special
rights of the Securities, whether by way of
amendment to this Declaration or otherwise
or (b) result in the dissolution, winding-up
or termination of the Trust other than
pursuant to the terms of this Declaration,
will entitle the holders of the Securities
voting together as a single class to vote on
such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of 66 b% of the
Securities affected thereby; provided that,
if any amendment or proposal referred to in
clause (a) above would adversely affect only
the Preferred Securities or the Common
Securities, then only the affected class
will be entitled to vote on such amendment
or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
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(f) The rights of the Holders of the Common Securities under
Article 5 to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities, if such amendment
does not adversely affect in any material respect the rights of the Holders of
the Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or
inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 of the
Investment Company Act or written change in
interpretation or application of Rule 3a-5
of the Investment Company Act by any
legislative body, court, government agency
or regulatory authority; or
(v) to modify, eliminate and add to any
provision of this Declaration to ensure that
the Trust will be classified as a grantor
trust for United States federal income tax
purposes at all times that any Securities
are outstanding or to ensure that the Trust
will not be required to register as an
Investment Company under the Investment
Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
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(b) The following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given to
all the Holders of Securities having a right
to vote thereat at least 7 days and not more
than 60 days before the date of such
meeting. Whenever a vote, consent or
approval of the Holders of Securities is
permitted or required under this Declaration
or the rules of any stock exchange on which
the Preferred Securities are listed or
admitted for trading, such vote, consent or
approval may be given at a meeting of the
Holders of Securities. Any action that may
be taken at a meeting of the Holders of
Securities may be taken without a meeting
and without prior notice if a consent in
writing setting forth the action so taken is
signed by the Holders of Securities owning
not less than the minimum amount of
Securities in liquidation amount that would
be necessary to authorize or take such
action at a meeting at which all Holders of
Securities having a right to vote thereon
were present and voting. Prompt notice of
the taking of action without a meeting shall
be given to the Holders of Securities
entitled to vote who have not consented in
writing. The Regular Trustees may specify
that any written ballot submitted to the
Security Holders for the purpose of taking
any action without a meeting shall be
returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters
in which a Holder of Securities is entitled
to participate, including waiving notice of
any meeting, or voting or participating at a
meeting. No proxy shall be valid after the
expiration of 11 months from the date
thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities
executing such proxy. Except as otherwise
provided herein, all matters relating to the
giving, voting or validity of proxies shall
be governed by the General Corporation Law
of the State of Delaware relating to
proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware
corporation and the Holders of the
Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Regular
Trustees or by such other Person that the
Regular Trustees may designate; and
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(iv) unless the Business Trust Act, this
Declaration, the terms of the Securities,
the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred
Securities are then listed for trading,
otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all
other provisions relating to meetings of
Holders of Securities, including notice of
the time, place or purpose of any meeting at
which any matter is to be voted on by any
Holders of Securities, waiver of any such
notice, action by consent without a meeting,
the establishment of a record date, quorum
requirements, voting in person or by proxy
or any other matter with respect to the
exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property
Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth
in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
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(d) the execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the articles of association or incorporation, as the case may be, or
the by-laws (or other similar organizational documents) of the Property Trustee;
and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has
the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
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ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
c/o Provident Financial Group, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
Chase Manhattan Bank Delaware
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Facsimile No: (000) 000-0000
(c) if given to the Property Trustee, at its Corporate Trust
Office (or such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Property Trustee, the
Delaware Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on
the register of the Trust.
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All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent with
such classification.
SECTION 13.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though
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one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
[The remainder of this page left blank intentionally;
The signature page follows.]
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IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-----------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
-----------------------------------
Name:
Title:
XXXXXXXXXXX X. XXXXX, as Regular Trustee
By:
-----------------------------------
Xxxxxxxxxxx X. Xxxxx
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XXXX X. XXXXX, ESQ., as Regular Trustee
By:
-----------------------------------
Xxxx X. Xxxxx
XXXXXX XXXXX, as Regular Trustee
By:
-----------------------------------
Xxxxxx Xxxxx
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EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY,
INSERT THE FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY
WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
CERTIFICATE NO.________________ NUMBER OF PREFERRED SECURITIES: _________
CUSIP NO. __________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
PROVIDENT CAPITAL TRUST __
__% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY PROVIDENT FINANCIAL GROUP, INC.
PROVIDENT CAPITAL TRUST __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ preferred
securities of the Trust representing undivided beneficial ownership interests in
the assets of the Trust designated the "__% Preferred Security" (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the register of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in the Declaration (as defined below). The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of _____________, as the same may be
amended from time to time (the "Declaration"), by and
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among PROVIDENT FINANCIAL GROUP, INC., XXXXXXXXXXX X. XXXXX, XXXX X. XXXXX,
ESQ., and XXXXXX XXXXX, as Regular Trustees, THE CHASE MANHATTAN BANK, as
Property Trustee, and CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee and the
Holders. Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the
Guarantee to the extent described therein. The Sponsor will provide a copy of
the Declaration, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of __________.
PROVIDENT CAPITAL TRUST __
By:
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
------------------------------------
Authorized Officer
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EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
CERTIFICATE NO. _______ NUMBER OF COMMON SECURITIES: _______
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PROVIDENT CAPITAL TRUST __
__% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
PROVIDENT CAPITAL TRUST __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
PROVIDENT FINANCIAL GROUP, INC. (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust designated the "__% Common Securities" (liquidation
amount $25 per Common Security) (the "Common Securities"). The Common Securities
are not transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Declaration (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of _________ (as the same
may be amended from time to time, the "Declaration"), by and among Provident
Financial Group, Inc., as Sponsor, XXXXXXXXXXX X. XXXXX, XXXX X. XXXXX, ESQ. and
XXXXXX XXXXX, as Regular Trustees, THE CHASE MANHATTAN BANK, as Property
Trustee, and CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee, and the
Holders. The Holder is entitled to the benefits of the Guarantee to the extent
described therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership interest in
the Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of ___________.
PROVIDENT CAPITAL TRUST __
By:
--------------------------------
Name: Xxxx X. Xxxxx
Title: Regular Trustee
