AMENDED AND RESTATED DECLARATION OF TRUST AND TRUST AGREEMENT Among SUPERIOR BANCORP, As Depositor THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. As Property Trustee BNY MELLON TRUST OF DELAWARE, As Delaware Trustee And THE SEVERAL HOLDERS OF THE...
Exhibit (4) -23
AMENDED AND RESTATED DECLARATION OF TRUST
AND TRUST AGREEMENT
AND TRUST AGREEMENT
Among
SUPERIOR BANCORP,
As Depositor
As Depositor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
As Property Trustee
As Property Trustee
And
THE SEVERAL HOLDERS OF THE TRUST SECURITIES
Dated as of December 11, 2009
SUPERIOR CAPITAL TRUST II
Superior Capital Trust II
Certain Sections of this Trust Agreement relating to Sections 3.10 through 3.18 of the Trust
Indenture Act of 1939:
Trust Indenture | Trust Agreement | |
(Section) 310 (a)(1) |
8.7 | |
(a)(2) |
8.7 | |
(a)(3) |
8.7 | |
(a)(4) |
2.7(a)(ii) | |
(b) |
8.8 | |
(Section) 311 (a) |
8.13 | |
(b) |
8.13 | |
(Section) 312 (a) |
5.7 | |
(b) |
5.7 | |
(Section) 313 (a) |
5.7 | |
(b) |
8.15(a) | |
(a)(4) |
8.15(b) | |
(b) |
8.15(b) | |
(c) |
10.8 | |
(d) |
8.15(c) | |
(Section) 314 (a) |
8.16 | |
(b) |
Not Applicable | |
(c)(1) |
8.17 | |
(c)(2) |
8.17 | |
(c)(3) |
Not Applicable | |
(d) |
Not Applicable | |
(e) |
1.1, 8.17 | |
(Section) 315 (a) |
8.1(a), 8.3(a) | |
(b) |
8.2, 10.8 | |
(c) |
8.1(a) | |
(d) |
8.1, 8.3 | |
(e) |
Not Applicable | |
(Section) 316 (a) |
Not Applicable | |
(a)(1)(A) |
Not Applicable | |
(a)(1)(B) |
Not Applicable | |
(a)(2) |
Not Applicable | |
(b) |
5.14 | |
(c) |
6.7 | |
(Section) 317 (a)(2) |
Not Applicable | |
(a)(2) |
Not Applicable | |
(b) |
5.9 | |
(Section) 318 (a) |
10.10 |
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
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TABLE OF CONTENTS
Page | ||||
ARTICLE I |
||||
DEFINED TERMS |
||||
Section 1.1 Definitions
|
1 | |||
ARTICLE II |
||||
CONTINUATION OF THE ISSUER TRUST |
||||
Section 2.1 Name
|
8 | |||
Section 2.2 Office of the Delaware Trustee; Principal Place of Business
|
8 | |||
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses
|
8 | |||
Section 2.4 Issuance of the Capital Securities
|
8 | |||
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures
|
9 | |||
Section 2.6 Declaration of Trust
|
9 | |||
Section 2.7 Authorization to Enter into Certain Transactions
|
9 | |||
Section 2.8 Assets of Trust
|
12 | |||
Section 2.9 Title to Trust Property
|
12 | |||
ARTICLE III |
||||
PAYMENT ACCOUNT |
||||
Section 3.1 Payment Account
|
12 | |||
ARTICLE IV |
||||
DISTRIBUTIONS; REDEMPTION |
||||
Section 4.1 Distributions
|
12 | |||
Section 4.2 Redemption
|
13 | |||
Section 4.3 Ranking of Trust Securities
|
15 | |||
Section 4.4 Payment Procedures
|
15 | |||
Section 4.5 Tax Returns and Reports
|
15 | |||
Section 4.6 Payment of Expenses of the Issuer Trust
|
16 | |||
Section 4.7 Payment of Taxes, Duties, Etc. of the Trust
|
16 | |||
Section 4.8 Payments under Indenture or Pursuant to Direct Actions
|
16 | |||
Section 4.9 Exchanges
|
16 | |||
ARTICLE V |
||||
TRUST SECURITIES CERTIFICATES |
||||
Section 5.1 Initial Ownership
|
17 | |||
Section 5.2 The Trust Securities Certificates
|
17 |
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Page | ||||
Section 5.3 Execution and Delivery of Trust Securities Certificates
|
17 | |||
Section 5.4 Registration of Transfer and Exchange of Capital Securities Certificates
|
17 | |||
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates
|
19 | |||
Section 5.6 Persons Deemed Holders
|
19 | |||
Section 5.7 Access to List of Holders’ Names and Addresses
|
19 | |||
Section 5.8 Maintenance of Office or Agency
|
19 | |||
Section 5.9 Appointment of Paying Agent
|
19 | |||
Section 5.10 Ownership of Common Securities by Depositor
|
20 | |||
Section 5.11 Book-Entry Capital Securities Certificates; Common Securities Certificate
|
20 | |||
Section 5.12 Notices to Clearing Agency
|
21 | |||
Section 5.13 Definitive Capital Securities Certificates
|
21 | |||
Section 5.14 Rights of Holders; Waivers of Past Defaults
|
21 | |||
Section 5.15 CUSIP Numbers
|
23 | |||
ARTICLE VI |
||||
ACTS OF HOLDERS; MEETINGS; VOTING |
||||
Section 6.1 Limitations on Voting Rights
|
23 | |||
Section 6.2 Notice of Meetings
|
24 | |||
Section 6.3 Meetings of Holders of the Capital Securities
|
24 | |||
Section 6.4 Voting Rights
|
24 | |||
Section 6.5 Proxies, etc
|
24 | |||
Section 6.6 Holder Action by Written Consent
|
24 | |||
Section 6.7 Record Date for Voting and Other Purposes
|
25 | |||
Section 6.8 Acts of Holders
|
25 | |||
Section 6.9 Inspection of Records
|
25 | |||
ARTICLE VII |
||||
REPRESENTATIONS AND WARRANTIES |
||||
Section 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee
|
26 | |||
Section 7.2 Representations and Warranties of Depositor
|
27 | |||
ARTICLE VIII |
||||
THE ISSUER TRUSTEES |
||||
Section 8.1 Certain Duties and Responsibilities
|
27 | |||
Section 8.2 Certain Notices
|
29 | |||
Section 8.3 Certain Rights of Property Trustee
|
29 | |||
Section 8.4 Issuer Trustees Not Responsible for Recitals or Issuance of Securities
|
31 | |||
Section 8.5 Issuer Trustees May Hold Securities
|
31 | |||
Section 8.6 Compensation; Indemnity; Fees
|
31 | |||
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees
|
32 | |||
Section 8.8 Conflicting Interests
|
32 | |||
Section 8.9 Co-Trustees and Separate Trustee
|
32 | |||
Section 8.10 Resignation and Removal; Appointment of Successor
|
33 | |||
Section 8.11 Acceptance of Appointment by Successor
|
34 | |||
Section 8.12 Merger, Conversion, Consolidation or Succession to Business
|
35 | |||
Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust
|
35 |
iii
Page | ||||
Section 8.14 Trustee May File Proofs of Claim
|
35 | |||
Section 8.15 Reports by Property Trustee
|
36 | |||
Section 8.16 Reports to the Property Trustee
|
36 | |||
Section 8.17 Evidence of Compliance with Conditions Precedent
|
36 | |||
Section 8.18 Number of Issuer Trustees
|
36 | |||
Section 8.19 Delegation of Power
|
36 | |||
ARTICLE IX |
||||
DISSOLUTION, LIQUIDATION AND MERGER |
||||
Section 9.1 Dissolution Events
|
37 | |||
Section 9.2 Dissolution
|
37 | |||
Section 9.3 Liquidation
|
37 | |||
Section 9.4 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust
|
38 | |||
ARTICLE X |
||||
MISCELLANEOUS PROVISIONS |
||||
Section 10.1 Limitation of Rights of Holders
|
39 | |||
Section 10.2 Amendment
|
39 | |||
Section 10.3 Separability
|
40 | |||
Section 10.4 Governing Law
|
40 | |||
Section 10.5 Payments Due on Non-Business Day
|
40 | |||
Section 10.6 Successors
|
41 | |||
Section 10.7 Headings
|
41 | |||
Section 10.8 Reports, Notices and Demands
|
41 | |||
Section 10.9 Agreement Not to Petition
|
42 | |||
Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act
|
42 | |||
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture
|
42 | |||
Section 10.12 Counterparts
|
42 | |||
Section 10.13 Waiver of Jury Trial
|
42 | |||
Section 10.14 Force Majeure
|
43 |
Exhibit A — Certificate of Trust
Exhibit B — Form of Common Securities Certificate
Exhibit C — Form of Capital Securities Certificate
Exhibit B — Form of Common Securities Certificate
Exhibit C — Form of Capital Securities Certificate
iv
AMENDED AND RESTATED DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of December 11, 2009
among (i) SUPERIOR BANCORP, a Delaware corporation (including any successors or assigns, the
“Depositor”), (ii) THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association
organized and existing under the laws of the United States of America, as property trustee (in such
capacity, the “Property Trustee”), (iii) BNY MELLON TRUST OF DELAWARE, a Delaware banking
corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”), (iv) XXXXX X. XXXXX,
an individual, and XXXXXXX X. XXXXXXXX, an individual, each of whose address is c/o Superior
Bancorp, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (each, an “Administrative Trustee,”
and collectively, the “Administrative Trustees”) (the Property Trustee, the Delaware Trustee, and
the Administrative Trustees being referred to collectively as the “Issuer Trustees”), and (v) the
several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and certain of the Issuer Trustees have heretofore duly declared and
established a statutory trust (the “Issuer Trust”) pursuant to the Delaware Statutory Trust Act
(as hereinafter defined) by entering into that certain Declaration of Trust, dated as of December
9, 2009 (the “Original Trust Agreement”), and by the execution and filing with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on December 9, 2009, attached as
Exhibit A (the “Certificate of Trust”); and
WHEREAS, the parties hereto desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer Trust to the Depositor, (ii) the issuance of the Capital Securities by
the Issuer Trust pursuant to the Exchange Agreement, and (iii) the acquisition by the Issuer Trust
from the Depositor of all of the right, title and interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders,
hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(c) the words “include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(d) all accounting terms used but not defined herein have the meanings assigned to them in
accordance with United States generally accepted accounting principles;
(e) unless the context otherwise requires, any reference to an “Article,” a “Section” or an
“Exhibit” refers to an Article, a Section or an Exhibit, as the case may be, of or to this Trust
Agreement; and
1
(f) the words “hereby,” “herein,” “hereof and “hereunder” and other words of similar import
refer to
this Trust Agreement as a whole and not to any particular Article, Section or other subdivision.
“Act” has the meaning specified in Section 6.8.
“Additional Amount” means, with respect to Trust Securities of a given Liquidation Amount
and/or a given period, the amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on a Like Amount of Debentures for such period.
“Additional Sums” has the meaning specified in Section 10.07 of the Indenture.
“Administrative Trustee” means each of the individuals identified as an “Administrative
Trustee” in the preamble to this Trust Agreement solely in such individual’s capacity as
Administrative Trustee of the Trust and not in such individual’s individual capacity, or such
Administrative Trustee’s successor in interest in such capacity, or any successor trustee
appointed as herein provided.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing
“Bankruptcy Event” means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the premises judging
such Person bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in respect of such Person under any
applicable Federal bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person
or of any substantial part of its property or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated bankrupt or insolvent, or
the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due and its
willingness to be adjudicated bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
“Bankruptcy Laws” has the meaning specified in Section 10.9.
“Board of Directors” means the board of directors of the Depositor or a committee designated
by the board of directors of the Depositor (or any such committee), comprised of one or more
members of the board of directors of the Depositor or officers of the Depositor, or both.
“Book-Entry Capital Securities Certificate” means a Capital Securities Certificate evidencing
ownership of Book-Entry Capital Securities.
“Book-Entry Capital Security” means a Capital Security, the ownership and transfers of which
shall be made through book entries by a Clearing Agency as described in Section 5.11.
“Business Day” means a day other than a Saturday, a Sunday, or any other day on which banking
institutions in New York, New York, Birmingham, Alabama, or Wilmington, Delaware are authorized or
required by law, regulation or executive order to remain closed or are customarily closed.
2
“Capital Securities Certificate” means a certificate evidencing ownership of Capital
Securities, substantially in the form attached as Exhibit C.
“Capital Security” means an undivided beneficial interest in the assets of the Issuer Trust,
having a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation Distribution as provided
herein.
“Certificate Depository Agreement” means the agreement among the Issuer Trust, the Paying
Agent and DTC, as the initial Clearing Agency, dated as of the Closing Date.
“Certificate of Trust” has the meaning specified in the recitals hereof, as amended from
time to time.
“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section
17A of the Exchange Act. DTC will be the initial Clearing Agency.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or
other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges
of securities deposited with the Clearing Agency.
“Closing Date” has the meaning specified in the Exchange Agreement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Common Securities Certificate” means a certificate evidencing ownership of Common
Securities, substantially in the form attached as Exhibit B.
“Common Security” means an undivided beneficial interest in the assets of the Issuer Trust,
having a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation Distribution as provided
herein.
“Corporate Trust Office” means (i) when used with respect to the Property Trustee, the
designated office of the Property Trustee at which at any time its corporate trust business shall
be administered, which office at the date hereof is located at 000
Xxxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust Administration, or such other address as the
Property Trustee may designate from time to time by notice to the Holders and the Depositor, or the
principal corporate trust office of any successor Property Trustee (or such other address as such
successor Property Trustee may designate from time to time by notice to the Holders and the
Depositor), and (ii) when used with respect to the Debenture Trustee, the designated office of the
Debenture Trustee at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Corporate Trust Administration, or such other address as the Debenture
Trustee may designate from time to time by notice to the holders of the Debentures and the
Depositor, or the principal corporate trust office of any successor Debenture Trustee (or such
other address as such successor Debenture Trustee may designate from time to time by notice to the
holders of the Debentures and the Depositor).
“Debenture Event of Default” means any “Event of Default” specified in Section 5.01 of the
Indenture.
“Debenture Redemption Date” means, with respect to any Debentures to be redeemed under the
Indenture, the date fixed for redemption of such Debentures under the Indenture.
3
“Debenture Trustee” means The Bank of New York Mellon Trust Company, N.A., a national banking
association, solely in its capacity as trustee pursuant to the Indenture and not in its individual
capacity, or its successor in interest in such capacity, or any successor trustee appointed as
provided in the Indenture.
“Debentures” means the Depositor’s Fixed Rate Perpetual Junior Subordinated Debentures,
Series A, issued pursuant to the Indenture.
“Definitive Capital Securities Certificates” means either or both (as the context requires)
of (i) Capital Securities Certificates issued as Book-Entry Capital Securities Certificates as
provided in Section 5.11, and (ii) Capital Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
“Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq., as it may be amended from time to time.
“Delaware Trustee” means the Person identified as the “Delaware Trustee” in the preamble to
this Trust Agreement, solely in its capacity as Delaware Trustee of the trust heretofore formed
and continued hereunder and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as herein provided.
“Depositor” has the meaning specified in the preamble to this Trust Agreement.
“Depositor Affiliated Owner” has the meaning specified in Section 4.9.
“Depositor Bankruptcy Event” means (i) the entry of a decree or order for relief in respect
of the Depositor by a court having jurisdiction in the premises in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days or (ii) the commencement by
the Depositor of a voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or the consent by the Depositor to the entry of a decree or order for relief in an
involuntary case under any such law.
“Dissolution Event” has the meaning specified in Section 9.1.
“Distribution Date” has the meaning specified in Section 4.1(a)(i).
“Distribution
Period” means the period of time beginning on any Distribution Date and ending
on the day immediately preceding the next succeeding Distribution Date.
“Distributions” means amounts payable in respect of the Trust Securities as provided in
Section 4.1.
“DTC” means The Depository Trust Company.
“Event of Default” means any one of the following events (whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when it becomes due and
payable, and continuation of such default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price of any Trust Security
when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trustees in this Trust Agreement (other than those specified in clause (b)
or (c) above) and continuation of
4
such default or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Issuer Trustees and to the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor
Property
Trustee has not been appointed within 90 days thereof.
“Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto,
in each case as amended from time to time.
“Exchange Agreement” means the Exchange Agreement, dated as of December 11, 2009, among the
Trust, the Depositor and the United States Department of the Treasury.
“Federal Reserve” means the Federal Reserve or its district reserve banks, as from time to
time constituted, or if at any time after the execution of this Trust Agreement the Federal
Reserve is not existing and performing the duties now assigned to it, then the body performing
such duties at such time.
“Guarantee” means the Guarantee Agreement executed and delivered by the Depositor and The Bank
of New York Mellon Trust Company, N.A., as trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the Capital Securities, as
amended from time to time.
“Holder” means a Person in whose name a Trust Security or Trust Securities are registered in
the Securities Register; any such Person shall be a beneficial owner within the meaning of the
Delaware Statutory Trust Act.
“Indenture” means the Junior Subordinated Indenture, dated as of December 11, 2009, between
the Depositor and the Debenture Trustee, as trustee, as supplemented by the First Supplemental
Indenture, dated as of December 11, 2009, between the Depositor and the Debenture Trustee, as
amended or supplemented from time to time.
“Investment Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.
“Issuer Trust” means the Delaware statutory trust known as “Superior Capital Trust II” which
was created on December _, 2009 under the Delaware Statutory Trust Act pursuant to the Original
Trust Agreement and the filing of the Certificate of Trust, and continued pursuant to this Trust
Agreement.
“Issuer Trustees” means, collectively, the Property Trustee, the Delaware Trustee, and the
Administrative Trustees.
“Lien” means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever.
“Like Amount” means (a) with respect to a redemption of any Trust Securities, Trust
Securities having a Liquidation Amount equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture, the proceeds of which will be used to
pay the Redemption Price of such Trust Securities, (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the
Issuer Trust or an exchange of Debentures for Capital Securities pursuant to Section 4.9,
Debentures having a principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed, and (c) with respect to any distribution of
Additional Amounts to Holders of Trust Securities, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of which such distribution is made.
“Liquidation Amount” means the stated amount of $1,000 per Trust Security.
5
“Liquidation Date” means the date of the liquidation of the Issuer Trust following the
dissolution of the Issuer Trust pursuant to Section 9.3.
“Liquidation Distribution” has the meaning specified in Section 9.3(d).
“Majority in Liquidation Amount of the Capital Securities” or “Majority in Liquidation Amount
of the Common Securities” means, except as provided by the Trust Indenture Act, Capital Securities
or Common Securities, as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Capital Securities or Common Securities, as the case may be.
“Officers’ Certificate” means, with respect to any Person, a certificate signed by the
Chairman of the Board of Directors of such Person, a Vice Chairman of the Board of Directors of
such Person, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of such Person. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement by each officer signing the Officers’ Certificate that such officer has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken
by such officer in rendering the Officers’ Certificate;
(c) a statement that such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such condition or covenant has
been complied with.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an
employee of the Depositor or any Affiliate of the Depositor.
“Original Trust Agreement” has the meaning specified in the recitals to this Trust
Agreement.
“Outstanding,” when used with respect to Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under this Trust Agreement,
except:
(a) Trust Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any Paying Agent; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of which other Capital
Securities have been executed and delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Capital Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Capital Securities owned by the Depositor, any
Issuer Trustee, or any Affiliate of the Depositor or any Issuer Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether any Issuer Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Capital Securities that such Issuer Trustee actually knows (or, in the case of the
Property Trustee or the Delaware Trustee, that a Responsible Officer of such Issuer Trustee
actually knows) to be so owned shall be so disregarded, and (b) the foregoing shall not apply at
any time when all of the outstanding Capital Securities are
6
owned by the Depositor, one or more of the Issuer Trustees, and/or any such Affiliate. Capital
Securities so owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the pledgee’s right so to
act with respect to such Capital Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
“Owner” means each Person who is the beneficial owner of Book-Entry Capital Securities as
reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the
Owner, then as reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing Agency).
“Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 5.9
and shall initially be the Property Trustee.
“Payment Account” means a segregated non-interest-bearing corporate trust account maintained
by the Property Trustee with Paying Agent in its trust department for the benefit of the Holders
in which all amounts paid in respect of the Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections
4.1 and 4.2.
“Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any
other entity of whatever nature.
“Property Trustee” means the Person identified as the “Property Trustee” in the preamble to
this Trust Agreement, solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any successor property
trustee appointed as herein provided.
“Redemption Date” means, with respect to any Trust Security to be redeemed, the date fixed
for such redemption by or pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of Trust Securities.
“Redemption Price” means, with respect to any Trust Security, the Liquidation Amount of such
Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, calculated and paid by the Depositor upon the concurrent redemption
of a Like Amount of Debentures.
“Relevant Trustee” shall have the meaning specified in Section 8.10.
“Responsible Officer” means, with respect to the Property Trustee and the Delaware Trustee,
any officer within the corporate trust department of such Issuer Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer, trust officer or
any other officer of such Issuer Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this Trust
Agreement.
“Securities Act” means the Securities Act of 1933, and any successor statute thereto, in each
case as amended from time to time.
“Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 5.4.
“Series A Preferred Stock” means the Fixed Rate Cumulative Perpetual Preferred Stock, Series
A, $1,000 liquidation preference per share, of the Depositor.
“Transfer” has the meaning specified in Section 5.4.
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“Trust Agreement” means this Amended and Restated Declaration of Trust and Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the applicable provisions
hereof, including (i) all exhibits, and (ii) for all purposes of this Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this Trust Agreement and any such modification, amendment or supplement,
respectively.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act
of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any
such amendment, the Trust Indenture Act of 1939 as so amended.
“Trust Property” means (a) the Debentures, (b) any cash on deposit in, or owing to, the
Payment Account, and (c) all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held by the Property Trustee pursuant
to this Trust Agreement.
“Trust Security” means any one of the Common Securities or the Capital Securities.
“Trust Securities Certificate” means any one of the Common Securities Certificates or the
Capital Securities Certificates.
“Vice President,” when used with respect to the Depositor, means any duly appointed vice
president, whether or not designated by a number or a word or words added before or after the
title “vice president.”
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
Section 2.1 Name.
The trust continued hereby shall be known as “Superior Capital Trust II,” as such name may be
modified from time to time by the Administrative Trustees following written notice to the Holders
and the other Issuer Trustees, in which name the Administrative Trustees and the other Issuer
Trustees may conduct the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and xxx and be sued on behalf of the Trust.
Section 2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the Depositor, the
Property Trustee and the Administrative Trustees. The principal executive office of the Issuer
Trust is c/o Superior Bancorp, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Superior Capital Trust II.
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses.
The Issuer Trustees acknowledge receipt from the Depositor in connection with the Original
Trust Agreement of the sum of $10, which constituted the initial Trust Property. The Depositor
shall pay organizational expenses of the Issuer Trust as they arise or shall, upon request of any
Issuer Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4 Issuance of the Capital Securities.
On December 11, 2009, the Depositor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Trust Agreement, executed and delivered the Exchange Agreement (such
action being hereby approved
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and ratified in all respects). Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.3 and deliver to the Investor named in the Exchange Agreement a Capital Securities
Certificate, registered in the name of the Investor or its nominee, in an aggregate amount of
69,000 Capital Securities having an aggregate Liquidation Amount of $69,000,000, against delivery
of 69,000 shares of Series A Preferred Stock, having an aggregate liquidation preference of
$69,000,000, which such Administrative Trustee shall promptly deliver to the Property Trustee.
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Issuer Trust, shall execute in accordance with Section 5.3 and deliver
to the Depositor Common Securities Certificates, registered in the name of the Depositor, in an
aggregate amount Common Securities having an aggregate Liquidation Amount of $100,000 against
payment by the Depositor of the purchase price therefor in immediately available funds, which
amount such Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf the Issuer Trust, shall
subscribe to and purchase from the Depositor Debentures registered in the name of the Issuer Trust
and having an aggregate principal amount equal to $69,100,000 and shall deliver or cause to be
delivered to the Depositor the purchase price therefor (being (i) the Series A Preferred Stock
delivered to the Property Trustee pursuant to the second sentence of Section 2.4 and (ii) the
amount delivered to the Property Trustee pursuant to the first sentence of this Section 2.5).
Section 2.6 Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue and sell the Common
Securities and to issue the Capital Securities in exchange for the Series A Preferred Stock, (b)
to use the proceeds from such sale and exchange to acquire the Debentures, and (c) to engage in
those activities necessary, convenient or incidental thereto. The Depositor hereby appoints the
Issuer Trustees as trustees of the Issuer Trust, to have all the rights, powers and duties to the
extent set forth herein, and the Issuer Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The Administrative Trustees
shall have all rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Issuer Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Property Trustee or the Administrative Trustees, or any of the duties and
responsibilities of the Issuer Trustees generally, set forth herein. The Delaware Trustee shall be
one of the trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Statutory Trust Act and for taking such actions as
are required to be taken by a Delaware trustee under the Delaware Statutory Trust Act.
Section 2.7 Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in accordance with the
terms of
this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section, and
in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have the
authority to enter into all transactions and agreements determined by the Issuer Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted to the Issuer
Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the
following:
(i) As among the Issuer Trustees, the Administrative Trustees, and each of them,
shall have
the power and authority to act on behalf of the Issuer Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to perform on behalf of the Issuer Trust the
Exchange Agreement and to cause the Issuer Trust to enter into, and to execute, deliver
and perform on behalf of the Issuer Trust the Certificate Depository Agreement, if
applicable, and such other agreements as may be necessary or desirable in connection
with the purposes and function of the Issuer Trust;
9
(C) to the extent required under the Exchange Agreement, assisting in the registration of
the Capital Securities under the Securities Act and under state securities or blue sky laws,
and the qualification of this Trust Agreement under the Trust Indenture Act;
(D) to the extent required under the Exchange Agreement, assisting in the listing of the
Capital Securities upon such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the Exchange Act, if
required, and with the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices of default) and other
information
regarding the Trust Securities and the Debentures to the Holders in accordance with this
Trust Agreement;
(F) the appointment of a Paying Agent and Securities Registrar in accordance with this
Trust Agreement;
(G) to the extent provided in this Trust Agreement, the winding up of the affairs of and
liquidation of the Issuer Trust and the execution and filing of the certificate of
cancellation with the
Secretary of State of the State of Delaware;
(H) execution of the Trust Securities on behalf of the Trust in accordance with this
Trust Agreement;
(I) execution and delivery of closing certificates, if any, pursuant to the Exchange
Agreement and application for a taxpayer identification number for the Issuer Trust;
(J) unless otherwise determined by the Depositor, the Property Trustee, or the
Administrative Trustees or as otherwise required by the Delaware Statutory Trust Act or the
Trust Indenture Act, to execute on behalf of the Issuer Trust (either acting alone or together
with any or all of the Administrative Trustees) any documents that the Administrative Trustees
have the power to execute pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as the Issuer Trustees may from
time to time determine is necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall have the power, duty and
authority to act on behalf of the Issuer Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made in respect of the
Debentures and the holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of amounts distributable to the Holders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the
Debentures;
(F) the sending of notices of default and other information regarding the Trust
Securities and
the Debentures to the Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of this Trust
Agreement;
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(H) to the extent provided in this Trust Agreement, the winding up of the affairs
of and liquidation of the Issuer Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b), (c), (d) or (e) of
the definition of such term if such Event of Default is by or with respect to the
Property Trustee) the taking of any action incidental to the foregoing as the Property
Trustee may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of any such action on any
particular Holder); and
(J) except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer
Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or
transactions except as expressly provided herein or contemplated hereby. In particular, the Issuer
Trustees (acting on behalf of the Issuer Trust) shall not cause the Trust to (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein, (iii) take any action
that would reasonably be expected to cause the Issuer Trust to become taxable as a corporation or
classified as other than a grantor trust for United States Federal or State income tax purposes,
(iv) incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any
action that would result in the placement of a Lien on any of the Trust Property, (vi) invest any
proceeds received by the Issuer Trust from holding the Debentures, but shall distribute all such
proceeds to Holders of Trust Securities pursuant to the terms of this Trust Agreement and of the
Trust Securities, (vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any power or otherwise
act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x)
issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the
Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issuance of the Capital Securities in exchange for the Series A
Preferred Stock, the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any actions taken by
the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) if appropriate, the preparation and filing by the Issuer Trust with the
Commission of and
the execution on behalf of the Issuer Trust of a registration statement on the appropriate
form in relation to the Capital Securities, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to qualify or
register for sale all or part of the Capital Securities and the determination of any and
all such acts, other than actions that must be taken by or on behalf of the Issuer Trust,
and the advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust,
and the preparation for execution and filing of any documents to be executed and filed by
the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such states;
(iii) if appropriate, the preparation for filing by the Issuer Trust and execution on
behalf of the Issuer Trust of an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market or any other automated quotation
system for listing upon notice of issuance of any Capital Securities and filing with such
exchange or self-regulatory organization such notification and documents as may be
necessary from time to time to maintain such listing;
11
(iv) the negotiation of the terms of, and the execution and delivery of, the
Exchange Agreement providing for the issuance of the Capital Securities; and
(v) the taking of any other actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative Trustees are
authorized and
directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an “investment company” required to be registered under the
Investment Company Act, and will not be taxable as a corporation or classified as other than a
grantor trust for United States Federal or State income tax purposes and so that the Debentures
will be treated as indebtedness of the Depositor for tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that they determine in their
discretion to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the Outstanding Capital
Securities. In no event shall the Depositor or the Issuer Trustees be liable to the Issuer Trust or
the Holders for any failure to comply with this section that results from a change in law or
regulation or in the interpretation thereof.
Section 2.8 Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
Section 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the Property Trustee (in
its capacity as such) and shall be held and administered by the Property Trustee in trust for the
benefit of the Issuer Trust and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and its agents shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as
herein provided, including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all
payments of principal of or interest on, and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in the Trust
Property, and
Distributions (including of Additional Amounts) will be made on the Trust Securities at the rate
and on the dates that
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payments of interest (including Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and will accumulate
whether or
not there are funds of the Trust available for the payment of Distributions. Distributions
shall accrue from February 15, 2010 and, except in the event (and to the extent) that the
Depositor exercises its right to defer the payment of interest on the Debentures pursuant
to the Indenture, shall be payable quarterly in arrears on each February 15, May 15,
August 15 and November 15 of each year, commencing on February 15, 2010. If any date on
which a Distribution is otherwise payable on the Trust Securities is not a Business Day,
then the payment of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such delay),
with the same force and effect as if made on the date on which such payment was originally
payable (each date on which distributions are payable in accordance with this Section
4.1(a), a “Distribution Date”).
(ii) In the event (and to the extent) that the Depositor exercises its right under the
Indenture
to defer the payment of interest on the Debentures, Distributions on the Trust Securities shall be
deferred
but shall continue to accumulate. Distributions on the Trust Securities shall be payable at a rate
of
(A) 5.00% per annum of the Liquidation Amount of the Trust Securities for the period from and
including
December 11, 2009 to but excluding February 15, 2014 and (B) 9.00% per annum of
the Liquidation Amount of the Trust Securities thereafter. The amount of Distributions payable
for any full quarterly period shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions for any partial period shall be computed on the
basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in a
partial month in that period. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the Property Trustee
from the Payment Account and shall be payable on each Distribution Date only to the
extent that the Issuer Trust has funds then on hand and available in the Payment Account
for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution Date shall be
payable to the
Holders thereof as they appear on the Securities Register for the Trust Securities at the close
of business on the relevant record date for such Distribution Date, which shall be the last day,
whether or not a Business Day, of the month immediately preceding the Distribution Date.
Distributions payable on any Trust Securities that are not punctually paid on any Distribution
Date will cease to be payable to the Person in whose name such Trust Securities are registered on
the relevant record date, and such defaulted Distribution will instead be payable to the Person
in whose name such Trust Securities are registered on the special record date or other specified
date for determining Holders entitled to such defaulted interest established in accordance with
the Indenture.
Section 4.2 Redemption.
(a) On each Debenture Redemption Date, the Issuer Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given at the written direction of the Depositor or an
Adminstrative Trustee by the Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder’s address appearing in the Security Register. All
notices of redemption shall be prepared by the Depositor or the Adminstrative Trustees and state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be calculated prior to
the time the notice is required to be sent, the estimate of the Redemption Price together
with a statement that it is an estimate and that the actual Redemption Price will be
calculated on the third Business Day prior to the
13
Redemption Date (and if an estimate is provided, a further notice shall be sent of the
actual Redemption Price on the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be redeemed, the
identification and the aggregate Liquidation Amount of the particular Trust Securities to be
redeemed;
(v) that on the Redemption Date the Redemption Price will become due and payable
upon
each such Trust Security to be redeemed and that Distributions thereon will cease to accrue
on and after said date, except as provided in Section 4.2(d) below; and
(vi) if the Capital Securities are not in book-entry-only form, the place or
places where the Capital Securities Certificates are to be surrendered for the payment of
the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption of the Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, with respect to Book-Entry Capital Securities, irrevocably
deposit with the Clearing Agency for such Book-Entry Capital Securities, to the extent available
therefor in the Payment Account, funds sufficient to pay the applicable Redemption Price and will
give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Capital Securities. With respect to Capital Securities that are not Book-Entry
Capital Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Paying Agent, to the extent available therefor in the Payment Account, funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Capital Securities upon surrender of
their Capital Securities Certificates. Notwithstanding the foregoing, Distributions payable on or
prior to the Redemption Date for any Trust Securities called for redemption shall be payable to
the Holders of such Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the date of such
deposit, all rights of Holders holding Trust Securities so called for redemption will cease,
except the right of such Holders to receive the Redemption Price and any Distribution payable in
respect of the Trust Securities on or prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay), with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the
Issuer Trust for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, the Property Trustee shall select the particular Capital Securities
to be redeemed not more than 60 days prior to the Redemption Date from the Outstanding Capital
Securities not previously called for redemption by any method the Property Trustee deems
appropriate, provided that so long as the Capital Securities are in book-entry-only form, such
selection shall be made in accordance with the customary procedures for the Clearing Agency for
the Capital Securities. The Property Trustee shall promptly notify the Securities Registrar in
writing of the Capital Securities selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating
to the redemption of Capital Securities shall relate, in the case of any
14
Capital Securities redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Capital Securities that has been or is to be redeemed.
Section 4.3 Ranking of Trust Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the Redemption Price of,
and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(e), pro rata among the Common Securities and the Capital Securities
based on the Liquidation Amount; provided, however, that if on any Distribution Date, Redemption
Date or Liquidation Date any Event of Default resulting from a Debenture Event of Default
specified in Section 5.01(1) or 5.01(2) of the Indenture shall have occurred and be continuing, no
payment of any Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of, any Common Security, and no other payment on account of
the redemption, liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Capital Securities for all Distribution Periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount of such
Redemption Price on all Outstanding Capital Securities then called for redemption, or in the case
of payment of the Liquidation Distribution the full amount of such Liquidation Distribution on all
Outstanding Capital Securities, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of, the Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from any Debenture Event
of Default, the Holders of the Common Securities shall have no right to act with respect to any
such Event of Default under this Trust Agreement until the effect of all such Events of Default
with respect to the Capital Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Capital Securities have been
so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holders of the Common Securities, and
only the Holders of the Capital Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.4 Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of the Capital
Securities shall, subject to the next succeeding sentence, be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities Register or, if the
Capital Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds. A Holder of $1,000,000 or more in aggregate Liquidation
Amount of Capital Securities may receive payments of Distributions (including any Additional
Amounts) by wire transfer of immediately available funds upon written request to the Property
Trustee not later than the last day, whether or not a Business Day, of the month immediately
preceding the relevant Distribution Date. Payments in respect of the Common Securities shall be
made in such manner as shall be mutually agreed between the Property Trustee and the Holders of
the Common Securities.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the Depositor’s
expense, and file all United States Federal and any other state and local tax and information
returns and reports required to be filed by or in respect of the Issuer Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) all
Internal Revenue Service and state tax forms required to be filed in respect of the Issuer Trust
in each taxable year of the Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service or state tax forms required to be provided
by the Issuer Trust. The Administrative Trustees shall provide the Depositor and the Property
Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The
Issuer Trustees shall comply with United States Federal and State withholding and backup
withholding tax laws and information reporting requirements with respect to any payments to
Holders under the Trust Securities.
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Section 4.6 Payment of Expenses of the Issuer Trust.
The Depositor shall pay to the Issuer Trust, and reimburse the Issuer Trust for, the full
amount of any costs, expenses or liabilities of the Issuer Trust (other than obligations of the
Issuer Trust to pay the Holders of any Capital Securities or other similar interests in the Issuer
Trust the amounts due such Holders pursuant to the terms of the Capital Securities or such other
similar interests, as the case may be), including, without limitation, any taxes, duties or other
governmental charges of whatever nature (other than withholding taxes) imposed on the Issuer Trust
by the United States or any other taxing authority. Such payment obligation includes any such
costs, expenses or liabilities of the Issuer Trust that are required by applicable law to be
satisfied in connection with a dissolution of the Issuer Trust.
Section 4.7 Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee shall promptly pay
any taxes, duties or governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Trust; provided, however, that under no circumstances shall the Property Trustee
have any liability for such sums, including non-receipt of any Additional Sums under the
Debentures.
Section 4.8 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities (or any Owner with respect
thereto) shall be reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.08 of the Indenture or Section 5.14 of this Trust
Agreement.
Section 4.9 Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliated Owner”) is the Owner or owner of any Capital Securities, such Depositor Affiliated
Owner shall have the right to deliver to the Property Trustee all or such portion of its Capital
Securities as it elects and receive, in exchange therefor, a Like Amount of Debentures. Such
election (i) shall be exercisable by such Depositor Affiliated Owner delivering to the Property
Trustee a written notice of such election specifying the Liquidation Amount of the Capital
Securities with respect to which such election is being made and the date on which such exchange
shall occur, which shall not be a date following the record date for any Distribution and prior to
the Distribution Date for such Distribution and (ii) shall be conditioned upon such Depositor
Affiliated Owner having delivered or caused to be delivered to the Property Trustee or its
designee the Capital Securities which are the subject of such election by 10:00 A.M. New York
time, on the date on which such exchange is to occur. After the exchange, such Capital Securities
will be cancelled and will no longer be deemed to be Outstanding and all rights of the Depositor
or its Affiliate(s) with respect to such Capital Securities, including accumulated but unpaid
Distributions thereon, will cease. In the event such Capital Securities are Book-Entry Capital
Securities, upon such exchange the Property Trustee, in its capacity as Securities Registrar,
shall cause an annotation to be made on the Book-Entry Capital Securities Certificate or
Certificates evidencing such Book-Entry Capital Securities to evidence the reduction in the
liquidation amount thereof resulting from such cancellation.
(b) Notwithstanding anything else in this Trust Agreement to the contrary, in order to
effectuate the exchanges contemplated by this Section 4.9, the Issuer Trust is hereby authorized
to execute, deliver and perform, and the Depositor or any Administrative Trustee on behalf of the
Issuer Trust, acting singly or collectively, is hereby authorized to execute and deliver on behalf
of the Issuer Trust, an exchange agreement, cancellation letter, and any and all other documents,
agreements, or certificates contemplated by or related to the exchanges made pursuant to this
Section 4.9, in each case without further vote or approval of any other Person.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1 Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the Depositor pursuant to
Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of the Issuer Trust.
Section 5.2 The Trust Securities Certificates.
The Capital Securities Certificates shall be issued in minimum denominations of $1,000
Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $1,000 Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be (i) executed on behalf of the Issuer Trust by
manual or facsimile signature of at least one Administrative Trustee and, if executed on behalf of
the Issuer Trust by facsimile, countersigned by the Securities Registrar or its agent and (ii)
authenticated by the Property Trustee by manual or facsimile signature of an authorized signatory
thereof and, if executed by such authorized signatory of the Property Trustee by facsimile,
countersigned by the Securities Registrar or its agent. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Issuer Trust or the Property Trustee or, if executed
on behalf of the Issuer Trust or the Property Trustee by facsimile, countersigned by the Securities
Registrar or its agent, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee’s name pursuant to Sections 5.4, 5.11 and 5.13.
Section 5.3 Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust Securities Certificates,
in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed on behalf
of the Issuer Trust and delivered to or upon the written order of the Depositor, such written
order executed by one authorized officer thereof, without further corporate action by the
Depositor, in authorized denominations.
Section 5.4 Registration of Transfer and Exchange of Capital Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency maintained pursuant to
Section 5.8, a register or registers for the purpose of registering Trust Securities Certificates
and transfers and exchanges of Capital Securities Certificates (the “Securities Register”) in which
the transfer agent and registrar designated by the Depositor (the “Securities Registrar”), subject
to such reasonable regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers and exchanges of Capital
Securities Certificates as herein provided. The Property Trustee shall be the initial Securities
Registrar. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee
in its role as Securities Registrar, for so long as the Property Trustee shall act as Securities
Registrar.
Upon surrender for registration of transfer of any Capital Securities Certificate at the
office or agency maintained pursuant to Section 5.8, the Administrative Trustees or any one of
them shall execute on behalf of the Issuer Trust (and if executed on behalf of the Issuer Trust by
a facsimile signature, such certificate shall be countersigned by the Securities Registrar or its
agent) and deliver, in the name of the designated transferee or transferees, one or more new
Capital Securities Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. The Securities
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Registrar shall not be required to register the transfer of any Capital Securities that have been
called for redemption during a period beginning at the opening of business 15 days before the day
of selection for such redemption.
At the option of a Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Capital Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.8.
Every Capital Securities Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form satisfactory to an
Administrative Trustee and the Securities Registrar duly executed by the Holder or his attorney
duly authorized in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by an Administrative Trustee
or the Securities Registrar in accordance with such Person’s customary practice.
No service charge shall be made for any registration of transfer or exchange of Capital
Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities Certificates.
The Capital Securities will initially bear a legend to the following effect:
“THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY
THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.”
In the event that any Capital Securities (i) become registered under the Securities Act or
(ii) are eligible to be transferred without restriction in accordance with Rule 144 or another
exemption from registration under the Securities Act (other than Rule 144A), the Administrative
Trustees, or any one of them, on behalf of the Issuer Trust, shall execute and make available for
delivery, in exchange for the Capital Securities Certificate evidencing such Capital Securities
and bearing such legend, Capital Securities Certificate which shall not contain such legend, and
the Property Trustee shall authenticate such Capital Securities Certificate; provided that that
Holder surrenders to the Issuer Trustee the previously issued certificates. Subject to compliance
with applicable securities laws, the initial Holder shall be permitted to transfer, sell, assign
or otherwise dispose of (“Transfer”) all or a portion of the
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Capital Securities at any time, and the Depositor and the Administrative Trustees, on behalf of
the Issuer Trust, shall take all steps as may reasonably be requested by the initial Holder to
facilitate the Transfer of the Capital Securities.
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities
Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate, and (b) there shall be delivered to
the Securities Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a protected purchaser, the Administrative
Trustees, or any one of them, on behalf of the Issuer Trust shall execute and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination.
In connection with the issuance of any new Trust Securities Certificate under this Section 5.5, the
Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection therewith. Any
duplicate Trust Securities Certificate issued pursuant to this Section shall constitute conclusive
evidence of an undivided beneficial interest in the assets of the Issuer Trust corresponding to
that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.
Section 5.6 Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities Register as the owner of
such Trust Securities Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the Administrative Trustees and the
Securities Registrar shall be bound by any notice to the contrary.
Section 5.7 Access to List of Holders’ Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee, the Delaware Trustee or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such information was
derived.
Section 5.8 Maintenance of Office or Agency.
The Administrative Trustees shall designate an office or offices or agency or agencies where
Capital Securities Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate The Bank of New York
Mellon Trust Company, N.A., 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Corporate Trust Administration, as its office and agency for such purposes. The
Administrative Trustee shall give prompt written notice to the Depositor, the Property Trustees
and to the Holders of any change in the location of the Securities Register or any such office or
agency.
Section 5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment Account and shall
report the amounts of such Distributions to the Property Trustee and the Administrative Trustees.
Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account solely
for the purpose of making the Distributions referred to above. The Property Trustee may revoke
such power and remove the Paying Agent in its sole discretion. The Paying Agent shall initially be
the Property Trustee. Any Person acting as Paying Agent shall be permitted to resign as Paying
Agent upon 30 days’ written notice to the Administrative Trustees and the Property Trustee. If the
Property Trustee shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company) that is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent. Such successor Paying Agent or any additional Paying Agent shall
execute and deliver to the Issuer Trustees an
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instrument in which such successor Paying Agent or additional Paying Agent shall agree with the
Issuer Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will
hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Property Trustee in its role as Paying Agent,
for so long as the Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire, and thereafter shall retain, beneficial and
record ownership of the Common Securities. To the fullest extent permitted by law, other than a
transfer in connection with a consolidation or merger of the Depositor into another Person, or any
conveyance, transfer or lease by the Depositor of its properties and assets substantially as an
entirety to any Person, pursuant to Section 8.01 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend consistent with this Section 5.10.
Section 5.11 Book-Entry Capital Securities Certificates; Common Securities Certificate.
(a) The Capital Securities Certificates, when exchanged for new Capital Securities
Certificates
pursuant to the last paragraph of Section 5.4 not bearing the legend required by such
Section, may be issued in the
form of a typewritten Capital Securities Certificate or Certificates representing Book-Entry
Capital Securities
Certificates, to be delivered to, or on behalf of, DTC, the initial Clearing Agency, by, or
on behalf of, the Issuer
Trust. Such Capital Securities Certificate or Certificates shall initially be registered on
the Securities Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Capital
Securities Certificate representing such Owner’s interest in such Capital Securities, except
as provided in
Section 5.13. Unless and until Definitive Capital Securities Certificates have been issued to
Owners pursuant to
Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Trust Agreement relating to the Book-Entry Capital
Securities Certificates (including the payment of the Liquidation Amount of and
Distributions on the Capital Securities evidenced by Book-Entry Capital Securities
Certificates and. the giving of instructions or directions to Owners of Capital Securities
evidenced by Book-Entry Capital Securities Certificates) as the sole Holder of Capital
Securities evidenced by Book-Entry Capital Securities Certificates and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict with any other
provisions of this Trust Agreement, the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Capital Securities Certificate shall
be exercised only through the Clearing Agency and shall be limited to those established by
law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive
Capital Securities Certificates are issued pursuant to Section 5.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Capital Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common Securities shall be issued
to the
Depositor in the form of a definitive Common Securities Certificate.
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Section 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is required under this
Trust Agreement, for so long as Capital Securities are represented by a Book-Entry Capital
Securities Certificates, the Administrative Trustees and the Issuer Trustee shall give all such
notices and communications specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13 Definitive Capital Securities Certificates.
The Capital Securities Certificates will initially be issued in the form of Definitive Capital
Securities Certificates. If, after the exchange of Definitive Capital Securities Certificates for
Book-Entry Capital Securities Certificates as contemplated by the first paragraph of Section
5.11(a), (a) the Depositor advises the Issuer Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect to the Capital
Securities Certificates, and the Depositor is unable to locate a qualified successor, (b) the
Depositor at its option advises the Issuer Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Capital Securities Certificates representing beneficial interests aggregating at
least a majority of the Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in the best interest
of the Owners of Capital Securities Certificates, then the Administrative Trustees shall notify the
other Issuer Trustees and the Clearing Agency, and the Clearing Agency, in accordance with its
customary rules and procedures, shall notify all Clearing Agency Participants for whom it holds
Capital Securities of the occurrence of any such event and of the availability of the Definitive
Capital Securities Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten Capital Securities
Certificate or Certificates representing the Book-Entry Capital Securities Certificates by the
Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one
of them, shall execute the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency, if executed on behalf of the Issuer Trust by facsimile,
countersigned by the Securities Registrar or its agent. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Issuer Trustees shall recognize the Holders of the Definitive
Capital Securities Certificates as holders of Trust Securities. The Definitive Capital Securities
Certificates shall be typewritten, printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Administrative Trustees that meets the requirements
of any stock exchange or automated quotation system on which the Capital Securities are then listed
or approved for trading, as evidenced by the execution thereof by the Administrative Trustees or
any one of them.
Section 5.14 Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in
its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or
title therein other than the undivided beneficial interest in the assets of the Issuer Trust
conferred by their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust except as described below. The Trust
Securities shall be personal property giving only the rights specifically set forth therein and in
this Trust Agreement. The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor will be fully paid
and, to the fullest extent permitted by applicable law, nonassessable by the Issuer Trust. The
Holders of the Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a Debenture Event of
Default, the Debenture Trustee fails or the holders of not less than 25% in principal amount of
the outstanding Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable as set forth in the Indenture, the Property Trustee or the Holders of
at least 25% in Liquidation Amount of the Capital Securities then Outstanding shall have the right
to make such declaration by a notice in writing to the Depositor, the Debenture Trustee and the
Property Trustee, in the case of notice by the Holders of the Capital Securities, or to the
Depositor, the Debenture Trustee and the Holders of the Capital Securities, in the case of notice
by the Property Trustee; and
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upon any such declaration such principal amount and the accrued interest on all of the Debentures
shall become immediately due and payable, provided that the payment of principal, interest and
premium, if any, on such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as in the Indenture provided, the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, by written notice to the Property Trustee, the Depositor and the Debenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a sum sufficient
to pay
(A) all overdue installments of interest on all of the Debentures,
(B) any accrued Additional Interest (as defined in the Indenture) on all of the
Debentures,
(C) the principal of (an premium, if any, on) any Debentures that have become due
otherwise then by such declaration of acceleration and interest and Additional Interest
as defined in the Indenture) thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under the Indenture and the
reasonable compensation, expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than the non-payment
of the principal of the Debentures that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital Securities may, on
behalf of the Holders of all the Capital Securities, waive any past default under the Indenture,
except a default in the payment of principal or interest (unless such default has been cured and a
sum sufficient to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in respect of a covenant
or provision that under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Capital Securities a record date
shall be established for determining Holders of Outstanding Capital Securities entitled to join in
such notice, which record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such record date, such notice
of declaration of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a written notice that
has been canceled pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain Outstanding, to the fullest extent
permitted by law
and subject to the terms of this Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 5.01(1) or 5.01(2) of the Indenture, any Holder of Capital Securities
shall have the right to institute a proceeding directly against the Depositor, pursuant to Section
5.08 of the Indenture, for enforcement of payment to such Holder of any amounts payable in respect
of Debentures having an aggregate principal amount equal to the
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aggregate Liquidation Amount of the Capital Securities of such Holder (a “Direct Action”). Except
as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of Capital Securities shall
have no right to exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this Section 5.14, the
Holders of at
least a Majority in Liquidation Amount of the Capital Securities may, on behalf of the Holders of
all the Capital Securities, waive any past default or Event of Default and its consequences. Upon
such waiver, any such default or Event of Default shall cease to exist, and any default or Event of
Default arising therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
Section 5.15 CUSIP Numbers.
The Administrative Trustees in issuing the Capital Securities may use “CUSIP” numbers (if
then generally in use), and, if so, the Property Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Capital
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Capital Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Administrative Trustees will
promptly notify the Property Trustee of any change in the CUSIP numbers.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1 Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the Indenture and as
otherwise required by law, no Holder of Capital Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the Issuer Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the Holders from time to
time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on behalf of the Issuer Trust,
the Issuer Trustees shall not (i) direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or execute any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive any past default that may be waived
under Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures, where such consent
shall be required, without, in each case, obtaining the prior approval of the Holders of at least
a Majority in Liquidation Amount of the Capital Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the prior written consent
of each Holder of Capital Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Capital Securities, except by a subsequent
vote of the Holders of the Capital Securities. The Property Trustee shall notify all Holders of
the Capital Securities of any notice of default received with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the Capital Securities, prior to
taking any of the foregoing actions, the Issuer Trustees shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not
cause the Issuer Trust to be taxable as a corporation or classified as other than a grantor trust
for United States Federal or State income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the Issuer Trustees
otherwise propose to effect, (i) any action that would adversely affect in any material respect
the powers, preferences or special rights of the Capital Securities, whether by way of amendment
to the Trust Agreement or otherwise, or (ii) the dissolution and winding-up of the Issuer Trust,
other than pursuant to the terms of this Trust Agreement, then
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the Holders of Outstanding Capital Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a Majority in Liquidation Amount of the Capital Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, it would cause the Issuer Trust to be taxable as a
corporation or classified as other than a grantor trust for United States Federal or State income
tax purposes.
Section 6.2 Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each
Holder of Capital Securities, at such Holder’s registered address, at least 15 days and not more
than 90 days before the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be
held as adjourned without further notice.
Section 6.3 Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The Property Trustee, however, shall call
a meeting of the Holders of the Capital Securities to vote on any matter upon the written request
of the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Capital
Securities and the Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Capital Securities to vote on any matters as to
which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Capital Securities, present
in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Capital
Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or
by proxy, holding Capital Securities representing at least a Majority in Liquidation Amount of the
Capital Securities held by the Holders present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of the Capital Securities, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 6.4 Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation Amount represented by
their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled
to vote.
Section 6.5 Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by proxy, provided
that no proxy shall be voted at any meeting unless it shall have been placed on file with the
Property Trustee, or with such other officer or agent of the Issuer Trust as the Property Trustee
may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Holders of record shall be entitled to vote.
When Trust Securities are held jointly by several persons, any one of them may vote at any meeting
in person or by proxy in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on
the challenger. No proxy shall be valid more than three years after its date of execution.
Section 6.6 Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without a meeting if
Holders holding at least a Majority in Liquidation Amount of all Capital Securities entitled to
vote in respect of such action (or such
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larger proportion thereof as shall be required by any other provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any distribution on the Trust Securities in
respect of which a record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Holders or the payment of a Distribution or
other action, as the case may be, as a record date for the determination of the identity of the
Holders of record for such purposes.
Section 6.8 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments are delivered to the
Property Trustee. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner that any Issuer Trustee receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder of every Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the
Issuer Trustees, or the Issuer Trust in reliance thereon, whether or not notation of such action
is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders and the Issuer Trustees or among the Holders
or the Issuer Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such Holder or Issuer
Trustee under this Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property Trustee, the records
of the Issuer Trust shall be open to inspection by Holders during normal business hours for any
purpose reasonably related to such Holder’s interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Representations and Warranties of the Property Trustee and the Delaware
Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself,
hereby represents and warrants for the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a national banking association vadily existing under the laws of
the United States of America;
(b) the Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken all necessary action
to authorize the execution, delivery and performance of its duties under this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation;
(d) the Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken all necessary action
to authorize the execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of each
of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles;
(f) the execution, delivery and performance of this Trust Agreement have been duly authorized
by all necessary corporate or other action on the part of the Property Trustee and the Delaware
Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware
Trustee and such execution, delivery and performance will not (i) violate the charter or by-laws
of the Property Trustee or the Delaware Trustee, (ii) to each of their knowledge without
independent investigation, violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property Trustee or the
Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case may be, governing the
banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate
in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property
Trustee or the Delaware Trustee (as the case may be) contemplated herein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing law of the United States or the
State of Delaware governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context), other than the filing of the Certificate of Trust
with the Delaware Secretary of State; and
(h) there are no proceedings pending or, to each of the Property Trustee’s and the Delaware
Trustee’s
knowledge, threatened against or affecting the Property Trustee or the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the Issuer Trust or would
question the right, power and authority of the Property Trustee or the Delaware Trustee, as the
case may be, to enter into or perform its obligations as one of the Trustees under this Trust
Agreement.
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Section 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders that:
(a) the Trust Securities Certificates issued at the Closing Date on behalf of the Issuer Trust
have been duly authorized and will have been duly and validly executed, issued and delivered by the
Issuer Trustees pursuant to the terms and provisions of, and in accordance with the requirements
of, this Trust Agreement, and the Holders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the Issuer Trust (or the
Issuer Trustees on behalf of the Issuer Trust) under the laws of the State of Delaware or any
political subdivision thereof in connection with the execution, delivery and performance by any
Issuer Trustee of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
Section 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as provided by this Trust
Agreement, subject to Section 10.10 hereof. Notwithstanding the foregoing, but subject to Section
8.1(c), no provision of this Trust Agreement shall require any of the Issuer Trustees to expend or
risk its or their own funds or otherwise incur any financial liability in the performance of any of
its or their duties hereunder, or in the exercise of any of its or their rights or powers, if it or
they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Issuer Trustees shall be subject to the provisions of
this Section 8.1. To the extent that, at law or in equity, an Administrative Trustee has duties and
liabilities relating to the Issuer Trust or to the Holders, such Administrative Trustee shall not
be liable to the Issuer Trust or to any Holder for such Administrative Trustee’s good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to replace such other
duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust Property and only to
the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable
the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Issuer Trustees are not personally liable to such Holder for any amount
distributable in respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property Trustee shall enforce
this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Trust Agreement (including pursuant to Section 10.10), and no
implied covenants shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to Section 5.14), the
Property Trustee shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own affairs.
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(e) No provision of this Trust Agreement shall be construed to relieve the Property Trustee
from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing or waiving
of all such
Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be determined solely
by the express provisions of this Trust Agreement (including pursuant to Section
10.10), and the Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust Agreement (including
pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property Trustee, the Property
Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the
Property Trustee and conforming to the requirements of this Trust Agreement; but in the
case of any such certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement (but need not confirm or
investigate the accuracy of any mathematical calculation or other facts stated
therein);
(ii) the Property Trustee shall not be liable with respect to any action taken or
omitted to be
taken by it in good faith in accordance with the direction of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under this Trust
Agreement;
(iii) the Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Payment Account shall be to deal with such
property in a similar manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree in writing with the Depositor; and money held by the
Property Trustee need not be segregated from other funds held by it except in relation to
the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except
to the extent otherwise required by law;
(v) the Property Trustee shall not be responsible for monitoring the compliance by
the
Administrative Trustees or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or misconduct of any
other Issuer Trustee, the Administrative Trustees or the Depositor; and
(vi) subject to Section 8.1(c), no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or
powers, if the Property Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk or liability is not reasonably
assured to it.
(f) The Administrative Trustees shall not be responsible for monitoring the compliance by the
other
Issuer Trustees or the Depositor with their respective duties under this Trust Agreement, nor
shall either
Administrative Trustee be liable for the default or misconduct of any other Issuer Trustee or
the Depositor.
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Section 8.2 Certain Notices.
Within ten days after the occurrence of any Event of Default actually known to the Property
Trustee, the Property Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders and the Administrative Trustees, unless such
Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor’s exercise of its
right to defer the payment of interest on the Debentures pursuant to the Indenture, the Property
Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Holders and the Administrative Trustees, unless such exercise shall have been
revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the
Property Trustee shall have received written notice or a Responsible Officer of the Property
Trustee charged with the administration of this Trust Agreement shall have obtained actual
knowledge of such Event of Default.
Section 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action, (ii) in construing any of the provisions
of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which the Holders of
the Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting the Depositor’s opinion as to the
course of action to be taken and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed to take, or refrain from taking,
by the Depositor; provided, however, that if the Depositor fails to deliver such opinion within
ten Business Days after the Property Trustee has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall not be less than
two Business Days), the Property Trustee shall take such action, or refrain from taking such
action, not inconsistent with this Trust Agreement, as the Property Trustee may deem advisable and
in the best interests of the Holders, in which event the Property Trustee shall have no liability
except for its own negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers’ Certificate;
(d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement
shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and
setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording, filing or registration
of any instrument (including any financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel of its selection (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its employees) and the
advice of such counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; the Property Trustee shall have the right at
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any time to seek instructions concerning the administration of this Trust Agreement from any court
of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in
it by this Trust Agreement at the request or direction of any of the Holders pursuant to this
Trust Agreement, unless such Holders shall have offered to the Property Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction; provided that nothing contained in
this Section 8.3(g) shall be taken to relieve the Property Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust
Agreement;
(h) the Property Trustee shall not be bound to make any investigation into the facts or
matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other evidence of indebtedness or other paper or
document, unless requested in writing to do so by one or more Holders, but the Property Trustee
may make such further inquiry or investigation into such facts or matters as it may see fit at the
expense of the Depositor and shall incur no liability of any kind by reason of such inquiry or
investigation;
(i) the Property Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through its agents or attorneys, provided that the Property
Trustee shall not be responsible for the negligence of any such agent or attorney appointed with
due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Property Trustee (i) may request instructions from the Holders (which
instructions may only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee
shall not be under any obligation to take any action that is discretionary under the provisions of this Trust
Agreement.
(l) The Property Trustee shall not be liable for any action taken, suffered, or omitted to
be taken by it
in good faith and reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement.
(m) The Property Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received by the Property
Trustee at the Corporate Trust Office of the Property Trustee, and such notice references the
Securities and this Agreement.
(n) The rights, privileges, protections, immunities and benefits given to the Property
Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Property Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder.
(o) In no event shall the Property Trustee be responsible or liable for special, indirect,
or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Property Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any
Issuer 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 such
Person shall be unqualified or incompetent in accordance with applicable law, to perform any such
act or acts, or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.
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Section 8.4 Issuer Trustees Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be taken as the
statements of the Issuer Trust and the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
Section 8.5 Issuer Trustees May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the Issuer Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject
to Sections 8.8 and 8.13, and except as provided in the definition of the term “Outstanding” in
Article I, may otherwise deal with the Issuer Trust with the same rights it would have if it were
not Issuer Trustee or such other agent.
Section 8.6 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such compensation for all services
rendered by them hereunder as may be separately agreed in writing by the Depositor and the Issuer
Trustees from time to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Issuer Trustees upon
request for all reasonable expenses, disbursements and advances incurred or made by the Issuer
Trustees in accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of their agents and counsel), except any such
expense, disbursement or advance as shall be determined to have been caused by their own negligence
or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each
Issuer Trustee, (ii) any Affiliate of any Issuer Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (iv) any employee or agent of the
Issuer Trust (referred to herein as an “Indemnified Person”) from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or dissolution of the Issuer Trust or any
act or omission performed or omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of its own negligence or willful misconduct with respect to such acts
or omissions.
The provisions of this Section 8.6 shall survive the termination of this Trust Agreement and
the removal or resignation of any Issuer Trustee.
When the Property Trustee incurs expenses or renders services in connection with an Event of
Default under this Trust Agreement, the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
No Issuer Trustee may claim any Lien on any Trust Property as a result of any amount due
pursuant to this Section 8.6.
The Depositor and any Issuer Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or dissimilar to the
business of the Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall have
no rights by virtue of this Trust Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
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competitive with the business of the Issuer Trust, shall not be deemed wrongful or improper.
Neither the Depositor nor any Issuer Trustee shall be obligated to present any particular
investment or other opportunity to the Issuer Trust even if such opportunity is of a character
that, if presented to the Issuer Trust, could be taken by the Issuer Trust, and the Depositor and
any Issuer Trustee shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other opportunity. Any
Issuer Trustee may engage or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations of the Depositor or
its Affiliates.
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that is a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such and that has a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining authority, then
for the purposes of this Section 8.7 and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section 8.7, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII. At the time of appointment, the Property Trustee must
have securities rated in one of the three highest rating categories by a nationally recognized
statistical rating organization.
(b) There shall at all times be one or more Administrative Trustees hereunder with respect to
the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more persons authorized to bind
that entity.
(c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. The
Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware, or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of applicable Delaware law and
that shall act through one or more persons authorized to bind such entity. 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 Issuer Trust, the Delaware Trustee shall be entitled to all benefits,
protections and rights of the Property Trustee under Section 8.3.
Section 8.8 Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in
this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
Section 8.9 Co-Trustees and Separate Trustee.
Unless and until a Debenture Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property may at the time be located, the Holder of
Common Securities and the Administrative Trustees shall have the power to appoint one or more
Persons either to act as co-trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to the extent required by law to act as separate trustee of any such property,
in either case with such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If a Debenture Event of
Default shall have occurred and be continuing, the Property Trustee shall have the sole power to so
appoint such a co-trustee or separate trustee, and upon the written request of
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the Property Trustee, the Depositor and the Administrative Trustees shall for such purpose join
with the Property Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, such co-trustee or separate trustee. Any co-trustee or
separate trustee appointed pursuant to this Section shall either be (i) a natural person who is at
least 21 years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any co-trustee or separate
trustee so appointed for more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments shall, on request, be executed,
acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be executed by one or more Administrative Trustees, and the
Trust Securities shall be delivered by the Property Trustee, and all rights, powers, duties, and
obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Property Trustee specified hereunder
shall be exercised solely by the Property Trustee and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property
Trustee in respect of any property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed by it, with the
written concurrence of the Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section 8.9, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or separate trustee so
resigning or removed may be appointed in the manner provided in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be personally liable by reason of any
act or omission of the Property Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-trustee or
separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to have been
delivered to each such co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the “Relevant Trustee”) and no appointment
of a successor Issuer Trustee pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Issuer Trustee in accordance with the applicable
requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by
giving written notice thereof to the Holders. If the instrument of acceptance by the successor
Issuer Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of
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resignation, the Relevant Trustee may petition, at the expense of the Depositor, in the case of
the Property Trustee, any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The Administrative Trustees, or any of them, may be removed at any time by Act of the Holders
of Common Securities delivered to the Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be removed by Act of the
Holders of at least a Majority in Liquidation Amount of the Capital Securities, delivered to the
Relevant Trustee (in its individual capacity and, in the case of the Property Trustee, on behalf of
the Issuer Trust) (i) for cause (including upon the occurrence of an Event of Default described in
subparagraph (d) of the definition thereof with respect to the Relevant Trustee), or (ii) at any
time if a Debenture Event of Default shall have occurred and be continuing. Unless and until a
Debenture Event of Default shall have occurred and be continuing, the Property Trustee or the
Delaware Trustee, or both of them, may be removed at any time by Act of the Holders of the Common
Securities.
If any Issuer Trustee shall resign, be removed or become incapable of acting as an Issuer
Trustee, or if a vacancy shall occur in the office of any Issuer Trustee for any cause, at any time
when no Debenture Event of Default shall have occurred and be continuing, the Holders of the Common
Securities, by Act of such Holders delivered to the Relevant Trustee, shall promptly appoint such
successor Issuer Trustee or Trustees, and the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or Delaware Trustee shall resign, be removed
or become incapable of acting as Issuer Trustee, as the case may be and a Debenture Event of
Default shall have occurred and be continuing, the Holders of the Capital Securities, by Act of the
Holders of not less than 25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or
Trustees, and such successor Issuer Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so appointed by the Holders of the
Common Securities or Capital Securities, as the case may be, and accepted appointment in the manner
required by Section 8.11, any Holder, on behalf of such Holder and all others similarly situated,
or any other Issuer Trustee, may, at the expense of the Depositor, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal of an Issuer
Trustee and each appointment of a successor Issuer Trustee to all Holders in the manner provided
in Section 10.8 and shall give notice to the Depositor and to the Administrative Trustees. Each
notice shall include the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust Agreement, if any Delaware
Trustee who is a natural person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the Property Trustee following the procedures regarding expenses and
charges set forth above (with the successor being a Person who satisfies the eligibility
requirement for the Delaware Trustee set forth in Section 8.7).
Section 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee (if requested by the Depositor) and each successor Relevant Trustee with respect to the
Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee
all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the provisions of
this Trust Agreement as shall be necessary to provide for or facilitate the administration of the
Issuer Trust by more than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery
of such amendment the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant Trustee, without any
further act, deed or conveyance, other than the filing of an amendment to the Certificate of Trust
to the extent required under the Delaware Statutory Trust Act, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee; but, on request of the Issuer
Trust or any successor Relevant Trustee such retiring Relevant Trustee shall upon payment of its
charges hereunder duly assign, transfer and deliver
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to such successor Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust shall execute any and
all instruments for more fully and certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at the time of such
acceptance such successor Relevant Trustee shall be qualified and eligible under this Article
VIII.
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person, succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, other than the filing of an amendment to the Certificate
of Trust to the extent required under the Delaware Statutory Trust Act.
Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the Depositor or the Issuer
Trust (or any other obligor upon the Capital Securities), the Property Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims against the Depositor
or the Issuer Trust (or any such other obligor).
Section 8.14 Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding relative to the Issuer
Trust or any other obligor upon the Trust Securities or the property of the Issuer Trust or of
such other obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the payment of any past
due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in
respect of the Trust Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the Property Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Property
Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or
to authorize the Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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Section 8.15 Reports by Property Trustee.
(a) The Property Trustee shall transmit to Holders such reports concerning the Property
Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Property Trustee with each national stock exchange, the Nasdaq National Market or such other
exchange, interdealer quotation system or self-regulatory organization upon which the Trust
Securities are listed or traded, with the Commission and with the Depositor. The Depositor will
notify the Property Trustee when the Trust Securities are listed or delisted on any stock exchange.
Section 8.16 Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee
such documents, reports and information as required by Section 314 of the Trust Indenture Act (if
any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust Indenture Act. The
Depositor and the Administrative Trustees shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all of the terms and covenants
applicable to such Person hereunder.
Delivery of such reports, information and documents to the Property Trustee is for
informational purposes only and the Property Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Depositor’s compliance with any of its covenants hereunder (as to
which the Property Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee
such evidence of compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1)
of the Trust Indenture Act shall be given in the form of an Officers’ Certificate.
Section 8.18 Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be five, unless the Property Trustee also acts as the
Delaware Trustee, in which case the number of Issuer Trustees may be three.
(b) If an Issuer Trustee ceases to hold office for any reason, a vacancy shall occur. The
vacancy shall be filled with an Issuer Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to
perform the duties of an Issuer Trustee shall not operate to annul or dissolve the Issuer Trust.
Section 8.19 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.7(a) or making any governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to time to such of
their number the doing of such things and the execution of such instruments either in the name of
the
36
Issuer Trust or the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1 Dissolution Events.
The first to occur of any of the following events is a “Dissolution Event”:
(a) the occurrence of a Depositor Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common Securities, unless the
Depositor shall transfer the Common Securities as provided by Section 5.10, in which case this
provision shall refer instead to any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from all of the Holders of the Common
Securities at any time to dissolve the Issuer Trust and to distribute the Debentures to Holders in
exchange for the Capital Securities (which direction is optional and wholly within the discretion
of the Holders of the Common Securities);
(c) the redemption of all of the Capital Securities in connection with the redemption or
repayment of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a court of competent
jurisdiction.
Section 9.2 Dissolution.
The respective obligations and responsibilities of the Issuer Trustees and the Issuer Trust
created and continued hereby shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.3, or upon the redemption
of all of the Trust Securities pursuant to Section 4.2; (b) the payment of any expenses owed by
the Issuer Trust; and (c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with respect to the Issuer
Trust or the Holders.
Section 9.3 Liquidation.
(a) If a Dissolution Event specified in clause (a), (b) or (d) of Section 9.1 occurs, the
Issuer Trust shall
be liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the Issuer Trust as
provided by applicable law, to each Holder a Like Amount of Debentures, subject to Section 9.3(d).
Notice of liquidation shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder’s address appearing in the Securities Register. All such notices
of liquidation shall:
(i) state the CUSIP Number of the Trust Securities;
(ii) state the Liquidation Date;
(iii) state that from and after the Liquidation Date, the Trust Securities will no
longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered
for exchange will be deemed to represent a Like Amount of Debentures, or if Section 9.3(d)
applies, a right to receive a Liquidating Distribution; and
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(iv) provide such information with respect to the mechanics by which Holders may
exchange Trust Securities Certificates for Debentures, or if Section 9.3(d) applies, receive
a Liquidation Distribution, as the Property Trustee (after consultation with the
Administrative Trustees) shall deem appropriate.
(b) Except where Section 9.1(c) or 9.3(d) applies, in order to effect the liquidation of the
Issuer Trust and distribution of the Debentures to Holders, the Property Trustee, either itself
acting as exchange agent or through the appointment of a separate exchange agent, shall establish a
record date for such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except
where Section 9.1(c) or 9.3(d) applies, after the Liquidation Date, (i) the Trust
Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like
Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of
such Certificates to the exchange agent for exchange, (iii) the Depositor shall use its best
efforts to have the Debentures listed on a national stock exchange, the Nasdaq National Market or
such other exchange, interdealer quotation system or self-regulatory organization as the Capital
Securities are then listed, (iv) any Trust Securities Certificates not so surrendered for exchange
will be deemed to represent a Like Amount of Debentures bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so surrendered, no
payments of interest or principal will be made to Holders of Trust Securities Certificates with
respect to such Debentures) and (v) all rights of Holders holding Trust Securities will cease,
except the right of such Holders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) If, notwithstanding the other provisions of this Section 9.3, whether because of an order
for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property Trustee not to be practical,
or if a Dissolution Event specified in Section 9.1(c) occurs, the Trust Property shall be
liquidated, and its affairs wound-up, by the Property Trustee in such manner as the Property
Trustee (after consultation with the Administrative Trustees) determines. In such event, Holders
will be entitled to receive out of the assets of the Issuer Trust available for distribution to
Holders, after satisfaction of liabilities to creditors of the Issuer Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”). If, upon any such winding up, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable by the Issuer
Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation Distributions upon any
such winding-up pro rata (determined as aforesaid) with Holders of Capital Securities, except that,
if a Debenture Event of Default specified in Section 5.01(1) or 5.01(2) of the Indenture has
occurred and is continuing, the Capital Securities shall have a priority over the Common Securities
as provided in Section 4.3.
Section 9.4 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any
corporation or other body, except pursuant to this Section 9.4 or Section 9.3. At the request of
the Holders of the Common Securities, with the consent of the Administrative Trustees, but without
the consent of the Holders of the Capital Securities, the Property Trustee or the Delaware
Trustee, the Issuer Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Issuer Trust with respect to the Capital
Securities, or (b) substitutes for the Capital Securities other securities having substantially
the same terms as the Capital Securities (the “Successor Securities”) so long as the Successor
Securities have the same priority as the Capital Securities with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) a trustee of such successor entity
possessing substantially the same powers and duties as the Property Trustee is appointed to hold
the Debentures, (iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notice of issuance, on a national securities exchange, the Nasdaq National Market or
such other exchange, interdealer quotation system of self-regulatory organization as the Capital
Securities are then listed, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not
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cause the Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an Opinion of Counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect, and (b) following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the
Issuer Trust nor such successor entity will be required to register as an “investment company”
under the Investment Company Act, and (viii) the Depositor or its permitted transferee owns all of
the Common Securities of such successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the consent of Holders of
all of the Capital Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety to any other
entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Issuer Trust or the successor entity to be taxable as a corporation or classified as other than
a grantor trust for United States Federal or State income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.1, the death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust Agreement,
nor dissolve or terminate the Trust, nor entitle the legal representatives or heirs of such Person
or any Holder for such person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of them.
Section 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the Administrative Trustees and
the Holders of all of the Common Securities, without the consent of any Holder of the Capital
Securities or any other Issuer Trustees, (i) to cure any ambiguity, correct or supplement any
provision herein that may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust Agreement, which shall
not be inconsistent with the other provisions of this Trust Agreement, or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or classified as other than a
grantor trust for United States Federal or State income tax purposes at all times that any Trust
Securities are outstanding or to ensure that the Issuer Trust will not be required to register as
an “investment company” under the Investment Company Act; provided, however, that in the case of
either clause (i) or (ii), such action shall not adversely affect in any material respect the
interests of any Holder.
(b) Except as provided in Section 10.2(c), any provision of this Trust Agreement may be
amended by the Administrative Trustees, the Property Trustee, and the Holders of all of the Common
Securities and with (i) the consent of Holders of at least a Majority in Liquidation Amount of the
Capital Securities, and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Trust’s status as a grantor trust or cause the Issuer Trust to
be taxable as a corporation or as other than a grantor trust for United States Federal or State
income tax purposes or affect the Issuer Trust’s exemption from status as an “investment company”
under the Investment Company Act.
39
(c) In addition to and notwithstanding any other provision in this Trust Agreement, without
the consent of each affected Holder, this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust Securities as of a specified
date, or (ii) restrict the right of a Holder to institute suit for the enforcement of any such
payment on or after such date; and notwithstanding any other provision herein, without the
unanimous consent of the Holders, this Section 10.2(c) may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no Issuer Trustee shall
enter into or consent to any amendment to this Trust Agreement that would cause the Issuer Trust
to fail or cease to qualify for the exemption from status as an “investment company” under the
Investment Company Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States Federal or State income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of
the Depositor and the Administrative Trustees, this Trust Agreement may not be amended in a manner
that imposes any additional obligation on the Depositor or the Administrative Trustees.
(f) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of
the Property Trustee, this Trust Agreement may not be amended in a manner that imposes any
additional obligation on the Property Trustee.
(g) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of
the Delaware Trustee, this Trust Agreement may not be amended in a manner that imposes any
additional obligation on the Delaware Trustee.
(h) In the event that any amendment to this Trust Agreement is made, the Administrative
Trustees or
the Property Trustee shall promptly provide to the Depositor a copy of such amendment.
(i) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into
any
amendment to this Trust Agreement that affects its own rights, duties or immunities under this
Trust Agreement. The Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers’ Certificate stating that any amendment to this Trust Agreement is in compliance with
this Trust Agreement.
Section 10.3 Separability.
In case any provision in this Trust Agreement or in the Trust Securities Certificates shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST,
THE DEPOSITOR, AND THE ISSUER TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
Section 10.5 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that is not a Business
Day, then such payment need not be made on such date but may be made on the next succeeding day
that is a Business Day, with the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount for the period after such
date.
40
Section 10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to
the Depositor, the Issuer Trust, and any Issuer Trustee, including any successor by operation of
law. Except in connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor’s obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 10.7 Headings.
The Article and Section headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section 10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any Holder or the Depositor
may be given or served in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of Capital Securities, to such Holder as such Holder’s name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities or the Depositor,
Superior Bancorp, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer, or to such other address as may be specified in a written notice by the Holder of the
Common Securities or the Depositor, as the case may be, to the Property Trustee. Such notice,
demand or other communication to or upon a Holder shall be deemed to have been sufficiently given
or made, for all purposes, upon hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this Trust Agreement is
required or permitted to be given or served to or upon the Issuer Trust, the Property Trustee, the
Delaware Trustee, the Administrative Trustees or the Issuer Trust shall be given in writing
addressed to such Person as follows: (a) with respect to the Property Trustee, to The Bank of New
York Mellon Trust Company, N.A., 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, Attention: Corporate Trust Administration; (b) with respect to the Delaware Trustee, to BNY
Mellon Trust of Delaware, Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration; (c) with respect to the Administrative Trustees, to them at c/o
Superior Bancorp, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, marked “Attention:
Administrative Trustees of Superior Capital Trust II”; and (d) with respect to the Issuer Trust,
to its principal office specified in Section 2.2, with a copy to the Property Trustee. Such
notice, demand or other communication to or upon the Issuer Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee or such Administrative Trustee.
The Property Trustee agrees to accept and act upon instructions or directions pursuant to this
Trust Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such written instructions,
subsequent to such transmission of written instructions, shall provide the originally executed
instructions or directions to the Property Trustee in a timely manner, and (b) such originally
executed instructions or directions shall be signed by an authorized representative of the party
providing such instructions or directions. If the party elects to give the Property Trustee e-mail
or facsimile instructions (or instructions by a similar electronic method) and the Property Trustee
in its discretion elects to act upon such instructions, the Property Trustee’s understanding of
such instructions shall be deemed controlling. The Property Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Property Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Property Trustee, including without limitation the risk of the Property
Trustee acting on unauthorized instructions, and the risk or interception and misuse by third
parties.
41
Section 10.9 Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the Holders that,
until at least one year and one day after the Issuer Trust has been dissolved in accordance with
Article IX, they shall not file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, “Bankruptcy Laws”) or otherwise join in the commencement of any
proceeding against the Issuer Trust under any Bankruptcy Law. If the Depositor takes action in
violation of this Section 10.9, the Property Trustee agrees, for the benefit of Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Issuer Trustee or the Issuer Trust may assert.
Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Trust Agreement and shall, to the extent applicable, be governed by
such provisions. Except as otherwise expressly provided herein, if and to the extent that any
provision of this Trust Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(b) The Property Trustee shall be the only Issuer Trustee that is a trustee for the purposes
of the Trust Indenture Act.
(c) The application of the Trust Indenture Act to this Trust Agreement shall not affect the
nature of the Trust Securities as equity securities representing undivided beneficial interests in
the assets of the Issuer Trust.
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A
HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST
IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST,
SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
Section 10.12 Counterparts.
This Trust Agreement may contain more than one counterpart of the signature page and this
Trust Agreement may be executed by the affixing of the signature of each of the Trustees to one of
such counterpart signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers had signed a
single signature page.
Section 10.13 Waiver of Jury Trial.
EACH OF THE DEPOSITOR AND THE PROPERTY TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY.
42
Section 10.14 Force Majeure.
In no event shall the Property Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or third-party computer
(software and hardware) services; it being understood that the Property Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
43
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Trust
Agreement.
SUPERIOR BANCORP, | ||||||
as Depositor | ||||||
By: | /s/ Xxxxx X. Xxxxx
|
|||||
Name: | Xxxxx X. Xxxxx | |||||
Title: | Chief Financial Officer | |||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||||||
as Property Trustee | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx XX | |||||
Name: | Xxxxxxx X. Xxxxxxx XX | |||||
Title: | Authorized Signatory | |||||
BNY MELLON TRUST OF DELAWARE, | ||||||
as Delaware Trustee | ||||||
By: | /s/ Xxxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxxx X. Xxxxx | |||||
Title: | Vice President | |||||
/s/ Xxxxx X. Xxxxx | ||||
Xxxxx X. Xxxxx, | ||||
as Administrative Trustee | ||||
/s/ Xxxxxxx X. Xxxxxxxx | ||||
Xxxxxxx X. Xxxxxxxx, | ||||
as Administrative Trustee | ||||
44
EXHIBIT A
CERTIFICATE OF TRUST
OF
SUPERIOR CAPITAL TRUST II
OF
SUPERIOR CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of Superior Capital Trust II (the “Trust”), is being duly executed
and filed by the undersigned, as trustees, to form a statutory trust under the Delaware Statutory
Trust Act (12 Del. C. Section 3801, et seq.) (the “Act”).
1. Name. The name of the trust formed hereby is Superior Capital Trust II.
2. Delaware Trustee. The name and the business address of the trustee of the Trust in
the State of Delaware are BNY Mellon Trust of Delaware, Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective upon filing.
4. Counterparts. This Certificate of Trust may be executed in counterparts.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
BNY MELLON TRUST OF DELAWARE, As Delaware Trustee not in its individual capacity but solely as trustee of the trust |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., As Property Trustee not in its individual capacity but solely as trustee of the trust |
||||
By: | ||||
Name: | ||||
Title: |
XXXXX X. XXXXX, as Administrative Trustee | ||||
XXXXXXX X. XXXXXXXX, as Administrative Trustee | ||||
EXHIBIT B
FORM OF COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN
COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.10 OF THE TRUST AGREEMENT
Certificate Number | Number of Common Securities |
Certificate Evidencing Common Securities
of Superior Capital Trust II
of Superior Capital Trust II
Fixed Rate Common Securities
(liquidation amount $1,000 per Common Security)
Superior Capital Trust II, a statutory trust created under the laws of the State of Delaware
(the “Issuer Trust”), hereby certifies that Superior Bancorp (the “Holder”) is the registered owner of
( ) Common Securities of the Issuer Trust representing
undivided common beneficial interests in the assets of the Issuer Trust and designated the Fixed
Rate Common Securities (liquidation amount $1,000 per Common Security) (the “Common Securities”).
Except in accordance with the Trust Agreement (as defined below), the Common Securities are not
transferable and, to the fullest extent permitted by law, any attempted transfer hereof other than
in accordance therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of Trust and Trust
Agreement of the Issuer
Trust, dated as of December ___, 2009, as the same may be amended from time to time (the “Trust
Agreement”),
among Superior Bancorp, as Depositor, The Bank of New York Mellon Trust Company, N.A., as Property
Trustee, BNY Mellon Trust of Delaware, as Delaware Trustee, and the Holders of Trust Securities,
including the designation of the terms of the Common Securities as set forth therein. The Issuer
Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request
to the Issuer Trust at its principal place of business or registered office. Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits
thereunder.
Terms used but not defined herein have the meanings set forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust has executed this
certificate this ___day of .
SUPERIOR CAPITAL TRUST II |
||||
By: | ||||
Name: | ||||
Title: | Administrative Trustee |
PROPERTY TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the above mentioned Trust Agreement.
Dated:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Property Trustee |
||||
By: | ||||
Authorized Signatory | ||||
EXHIBIT C
FORM OF CAPITAL SECURITIES CERTIFICATE
[Include if required by Section 5.4 — THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT
SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY
THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER,
SELL OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.]
[Include if this is a Book-Entry Capital Securities Certificate — This Capital Securities
Certificate is a Book-Entry Capital Securities Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of a Clearing Agency or a nominee
of a Clearing Agency. This Capital Securities Certificate is exchangeable for Capital Securities
Certificates registered in the name of a person other than the Clearing Agency or its nominee only
in the limited circumstances described in the Trust Agreement and may not be transferred except as
a whole by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing
Agency to the Clearing Agency or another nominee of the Clearing Agency, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation (“DTC”), to Superior Capital Trust II or its agent
for registration of transfer, exchange or payment, and any Capital Security Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.]
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE “CODE”) (EACH, A “PLAN”), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS”
BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY (A “PLAN ASSET ENTITY”), AND NO PERSON INVESTING
“PLAN ASSETS” OF ANY PLAN, MAY ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING OR THE REQUIREMENTS
OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-l ARE SATISFIED SUCH THAT THE CAPITAL
SECURITIES CERTIFICATE HELD BY THE PURCHASER OR HOLDER DOES NOT CONSTITUTE “PLAN ASSETS” AND, IN
THE CASE OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23, 95-60, 91-38,
90-1 OR 84-14 OR U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.40lc-1, HAS COMPLIED WITH ANY
REQUEST BY THE DEPOSITOR OR THE ISSUER TRUST FOR AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH
RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS CAPITAL SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
HEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH
SECURITIES ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION
WITH RESPECT TO SUCH PURCHASE OR HOLDING OR U.S. DEPARTMENT OF LABOR REGULATION SECTION
2550.40lc-1.
Certificate Number | Number of Capital Securities | |
CUSIP NO. |
Certificate Evidencing Capital Securities
of
Superior Capital Trust II
Fixed Rate Capital Securities
Fixed Rate Capital Securities
(liquidation amount $1,000 per Capital Security)
Superior Capital Trust II, a statutory trust created under the laws of the State of Delaware (the “Issuer
Trust”), hereby certifies that (the “Holder”) is the registered owner of
( ) Capital Securities of the Trust representing an undivided preferred beneficial interest in
the assets of
the Trust and designated the Superior Capital Trust II Fixed Rate Capital Securities (liquidation
amount $1,000 per Capital Security) (the “Capital Securities”). Subject to the terms of the Trust
Agreement (as defined below), the Capital Securities are transferable on the books and records of
the Issuer Trust, in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in the Trust Agreement (as defined
below). The designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Declaration
of Trust and Trust Agreement of the Issuer Trust, dated as of
December , 2009, as the same may be
amended from
time to time (the “Trust Agreement”), among Superior Bancorp, as Depositor, The Bank of New York
Mellon Trust Company, N.A., as Property Trustee, BNY Mellon Trust of Delaware, as Delaware Trustee,
and the Holders of
Trust Securities. The Holder is entitled to the benefits of the Guarantee Agreement, dated as of
December , 2009,
as the same may be amended from time to time (the “Guarantee Agreement”), by and between Superior
Bancorp, as Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Guarantee Trustee,
to the extent provided therein. The Issuer Trust will furnish a copy of the Issuer Trust Agreement
and the Guarantee Agreement to the Holder without charge upon written request to the Issuer Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust has executed this
certificate this ___day of .
SUPERIOR CAPITAL TRUST II |
||||
By: | ||||
Name: | ||||
Title: | Administrative Trustee | |||
PROPERTY TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the above mentioned Trust Agreement.
Dated:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Property Trustee |
||||
By: | ||||
Authorized Signatory | ||||
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security to:
(Insert assignee’s social
security or tax identification number)
(Insert address and zip code of assignee) and
irrevocably appoints
agent to transfer this
Capital Security Certificate on the books of the Issuer Trust. The agent may substitute another to
act for him or her.
Date:
|
Signature: | |||||||
(Sign exactly as your name appears on the other side of this Capital Security Certificate) The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. |