Exhibit 10.1
AMENDED
AND RESTATED DECLARATION
OF
TRUST
by
and
among
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee,
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee,
WASHINGTON
TRUST BANCORP, INC.,
as
Sponsor,
and
DAVID
V.
DEVAULT, JOHN C. WARREN and
JOHN
F.
TREANOR,
as
Administrators,
Dated
as
of August 29, 2005
TABLE
OF CONTENTS
Page
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ARTICLE
I INTERPRETATION AND DEFINITIONS
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Section
1.1.
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Definitions.
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ARTICLE
II ORGANIZATION
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Section
2.1.
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Name.
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Section
2.2.
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Office.
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Section
2.3.
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Purpose.
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Section
2.4.
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Authority.
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Section
2.5.
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Title
to Property of the Trust.
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Section
2.6.
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Powers
and Duties of the Trustees and the Administrators.
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Section
2.7.
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Prohibition
of Actions by the Trust and the Institutional Trustee.
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Section
2.8.
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Powers
and Duties of the Institutional Trustee.
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Section
2.9.
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Certain
Duties and Responsibilities of the Trustees and
Administrators.
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Section
2.10.
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Certain
Rights of Institutional Trustee.
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Section
2.11.
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Delaware
Trustee.
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Section
2.12.
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Execution
of Documents.
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Section
2.13.
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Not
Responsible for Recitals or Issuance of Securities.
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Section
2.14.
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Duration
of Trust.
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Section
2.15.
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Mergers.
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ARTICLE
III SPONSOR
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Section
3.1.
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Sponsor’s
Purchase of Common Securities.
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Section
3.2.
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Responsibilities
of the Sponsor.
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Section
3.3.
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Expenses.
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Section
3.4.
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Right
to Proceed.
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ARTICLE
IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
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Section
4.1.
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Number
of Trustees.
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Section
4.2.
|
Delaware
Trustee; Eligibility.
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Section
4.3.
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Institutional
Trustee; Eligibility.
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Section
4.4.
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Administrators.
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Section
4.5.
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Appointment,
Removal and Resignation of Trustees and Administrators.
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Section
4.6.
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Vacancies
Among Trustees.
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Section
4.7.
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Effect
of Vacancies.
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Section
4.8.
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Meetings
of the Trustees and the Administrators.
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Section
4.9.
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Delegation
of Power.
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Section
4.10.
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Conversion,
Consolidation or Succession to Business.
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ARTICLE
V DISTRIBUTIONS
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Section
5.1.
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Distributions.
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ARTICLE
VI ISSUANCE OF SECURITIES
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Section
6.1.
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General
Provisions Regarding Securities.
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Section
6.2.
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Paying
Agent, Transfer Agent and Registrar.
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Section
6.3.
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Form
and Dating.
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Section
6.4.
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Mutilated,
Destroyed, Lost or Stolen Certificates.
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Section
6.5.
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Temporary
Securities.
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Section
6.6.
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Cancellation.
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Section
6.7.
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Rights
of Holders; Waivers of Past Defaults.
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ARTICLE
VII DISSOLUTION AND TERMINATION OF TRUST
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Section
7.1.
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Dissolution
and Termination of Trust.
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ARTICLE
VIII TRANSFER OF INTERESTS
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Section
8.1.
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General.
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Section
8.2.
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Transfer
Procedures and Restrictions.
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Section
8.3.
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Deemed
Security Holders.
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ARTICLE
IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL
TRUSTEE
OR OTHERS
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Section
9.1.
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Liability.
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Section
9.2.
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Exculpation.
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Section
9.3.
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Fiduciary
Duty.
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Section
9.4.
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Indemnification.
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Section
9.5.
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Outside
Businesses.
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Section
9.6.
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Compensation;
Fee.
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ARTICLE
X ACCOUNTING
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Section
10.1.
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Fiscal
Year.
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Section
10.2.
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Certain
Accounting Matters.
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Section
10.3.
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Banking.
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Section
10.4.
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Withholding.
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ARTICLE
XI AMENDMENTS AND MEETINGS
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Section
11.1.
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Amendments.
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Section
11.2.
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Meetings
of the Holders of Securities; Action by Written Consent.
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ARTICLE
XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE
TRUSTEE
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Section
12.1.
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Representations
and Warranties of Institutional Trustee.
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Section
12.2.
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Representations
of the Delaware Trustee.
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ARTICLE
XIII MISCELLANEOUS
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Section
13.1.
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Notices.
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Section
13.2.
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Governing
Law.
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Section
13.3.
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Intention
of the Parties.
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Section
13.4.
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Headings.
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Section
13.5.
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Successors
and Assigns.
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Section
13.6.
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Partial
Enforceability.
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Section
13.7.
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Counterparts.
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Annex
I
Terms
of
Securities
Exhibit
A-1
Form
of
Capital Security Certificate
Exhibit
A-2
Form
of
Common Security Certificate
Exhibit
B
Specimen
of Initial Debenture
Exhibit
C
Placement
Agreement
AMENDED
AND RESTATED
DECLARATION
OF TRUST
OF
WT
CAPITAL TRUST I
August
29, 2005
AMENDED
AND RESTATED DECLARATION OF TRUST (“
Declaration
”)
dated
and effective as of August 29, 2005, by the Trustees (as defined herein),
the Administrators (as defined herein), the Sponsor (as defined herein) and
by
the holders, from time to time, of undivided beneficial interests in the
Trust
(as defined herein) to be issued pursuant to this Declaration;
WHEREAS,
the Trustees, the Administrators and the Sponsor established WT Capital
Trust I (the “
Trust
”),
a
statutory trust under the Statutory Trust Act (as defined herein) pursuant
to a
Declaration of Trust dated as of August 11, 2005 (the “
Original
Declaration
”),
and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on August 11, 2005, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain debentures of the Debenture
Issuer (as defined herein);
WHEREAS,
as of the date hereof, no interests in the Trust have been issued;
and
WHEREAS,
the Trustees, the Administrators and the Sponsor, by this Declaration, amend
and
restate each and every term and provision of the Original
Declaration;
NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust
as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes the governing instrument of such statutory trust, the Trustees
declare that all assets contributed to the Trust will be held in trust for
the
benefit of the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration. The parties hereto hereby
agree
as follows:
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
Section
1.1.
Definitions
.
Unless
the context otherwise requires:
(a)
Capitalized
terms used in this Declaration but not defined in the preamble above have
the
respective meanings assigned to them in this Section 1.1;
(b)
a
term
defined anywhere in this Declaration has the same meaning
throughout;
(c)
all
references to “the Declaration” or “this Declaration” are to this Declaration as
modified, supplemented or amended from time to time;
(d)
all
references in this Declaration to Articles and Sections and Annexes and
Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified; and
(e)
a
reference to the singular includes the plural and vice versa.
“
Acceleration
Event of Default
”
has the
meaning set forth in the Indenture.
“
Additional
Interest
”
has the
meaning set forth in the Indenture.
“
Administrative
Action
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Administrators
”
means
each of David V. Devault, John C. Warren and John F.
Treanor,
solely in such Person’s capacity as Administrator of the Trust created and
continued hereunder and not in such Person’s individual capacity, or such
Administrator’s successor in interest in such capacity, or any successor
appointed as herein provided.
“
Affiliate
”
has the
same meaning as given to that term in Rule 405 of the Securities
Act or any
successor rule thereunder.
“
Authorized
Officer
”
of a
Person means any Person that is authorized to bind such Person.
“
Bankruptcy
Event
”
means,
with respect to any Person:
(a)
a
court
having jurisdiction in the premises shall enter a decree or order for relief
in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing
a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree or
order
shall remain unstayed and in effect for a period of 90 consecutive
days;
or
(b)
such
Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent
to the
entry of an order for relief in an involuntary case under any such law,
or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of such
Person of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay
its
debts as they become due.
“
Business
Day
”
means
any day other than Saturday, Sunday or any other day on which banking
institutions in New York City or Wilmington, Delaware are permitted or
required
by any applicable law or executive order to close.
“
Capital
Securities
”
has the
meaning set forth in paragraph 1(a) of Annex I.
“
Capital
Security Certificate
”
means a
definitive Certificate in fully registered form representing a Capital
Security
substantially in the form of Exhibit A-1.
“
Capital
Treatment Event
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Certificate
”
means
any certificate evidencing Securities.
“
Closing
Date
”
has the
meaning set forth in the Placement Agreement.
“
Code
”
means
the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.
“
Common
Securities
”
has the
meaning set forth in paragraph 1(b) of Annex I.
“
Common
Security Certificate
”
means a
definitive Certificate in fully registered form representing a Common Security
substantially in the form of Exhibit A-2.
“
Company
Indemnified Person
”
means
(a) any Administrator; (b) any Affiliate of any Administrator;
(c) any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Administrator; or (d) any officer,
employee or agent of the Trust or its Affiliates.
“
Comparable
Treasury Issue
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Comparable
Treasury Price
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Corporate
Trust Office
”
means
the office of the Institutional Trustee at which the corporate trust business
of
the Institutional Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Declaration
is
located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-1600, Attn: Corporate Trust Administration.
“
Coupon
Rate
”
has the
meaning set forth in paragraph 2(a) of Annex I.
“
Covered
Person
”
means:
(a) any Administrator, officer, director, shareholder, partner,
member,
representative, employee or agent of (i) the Trust or (ii) any
of the
Trust’s Affiliates; and (b) any Holder of Securities.
“
Creditor
”
has the
meaning set forth in Section 3.3.
“
Debenture
Issuer
”
means
Washington Trust Bancorp, Inc., a Rhode Island corporation, in its capacity
as
issuer of the Debentures under the Indenture.
“
Debenture
Trustee
”
means
Wilmington Trust Company, as trustee under the Indenture until a successor
is
appointed thereunder, and thereafter means such successor trustee.
“
Debentures
”
means
the Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures
due
2035 to be issued by the Debenture Issuer under the Indenture.
“
Defaulted
Interest
”
has the
meaning set forth in the Indenture.
“
Delaware
Trustee
”
has the
meaning set forth in Section 4.2.
“
Determination
Date
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Direct
Action
”
has the
meaning set forth in Section 2.8(d).
“
Distribution
”
means a
distribution payable to Holders of Securities in accordance with Section
5.1.
“
Distribution
Payment Date
”
has the
meaning set forth in paragraph 2(b) of Annex I.
“
Distribution
Period
”
means
(i) with respect to the Distribution paid on the first Distribution
Payment
Date, the period beginning on (and including) the date of original issuance
and
ending on (but excluding) the Distribution Payment Date in December 2005
and
(ii) thereafter, with respect to a Distribution paid on each successive
Distribution Payment Date, the period beginning on (and including) the
preceding
Distribution Payment Date and ending on (but excluding) such current
Distribution Payment Date.
“
Distribution
Rate
”
means,
for the Distribution Period beginning on (and including) the date of original
issuance and ending on (but excluding) the Distribution Payment Date in
September 2010, the rate per annum of 5.965%, and for each Distribution
Period
beginning on or after the Distribution Payment Date in September 2010,
the
Coupon Rate for such Distribution Period.
“
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 an Indenture Event of Default; or
(b)
default
by the Trust in the payment of any Redemption Price or Special Redemption
Price
of any Security when it becomes due and payable; or
(c)
default
in the performance, or breach, in any material respect, of any covenant
or
warranty of the Institutional Trustee in this Declaration (other than those
specified in clause (a) or (b) above) and continuation of such default
or
breach for a period of 60 days after there has been given, by registered
or
certified mail to the Institutional Trustee and to the Sponsor 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
(d)
the
occurrence of a Bankruptcy Event with respect to the Institutional Trustee
if a
successor Institutional Trustee has not been appointed within 90 days
thereof.
“
Extension
Period
”
has the
meaning set forth in paragraph 2(b) of Annex I.
“
Federal
Reserve
”
has the
meaning set forth in paragraph 3 of Annex I.
“
Fiduciary
Indemnified Person
”
shall
mean each of the Institutional Trustee (including in its individual capacity),
the Delaware Trustee (including in its individual capacity), any Affiliate
of
the Institutional Trustee or Delaware Trustee and any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee or Delaware
Trustee.
“
Fiscal
Year
”
has the
meaning set forth in Section 10.1.
“
Fixed
Rate Period Remaining Life
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Guarantee
”
means
the guarantee agreement to be dated as of the Closing Date, of the Sponsor
in
respect of the Capital Securities.
“
Holder
”
means a
Person in whose name a Certificate representing a Security is registered,
such
Person being a beneficial owner within the meaning of the Statutory Trust
Act.
“
Indemnified
Person
”
means a
Company Indemnified Person or a Fiduciary Indemnified Person.
“
Indenture
”
means
the Indenture dated as of the Closing Date, between the Debenture Issuer
and the
Debenture Trustee, and any indenture supplemental thereto pursuant to which
the
Debentures are to be issued, as such Indenture and any supplemental indenture
may be amended, supplemented or otherwise modified from time to
time.
“
Indenture
Event of Default
”
means
an “Event of Default” as defined in the Indenture.
“
Institutional
Trustee
”
means
the Trustee meeting the eligibility requirements set forth in Section
4.3.
“
Interest
”
means
any interest due on the Debentures including any Additional Interest and
Defaulted Interest.
“
Investment
Company
”
means
an investment company as defined in the Investment Company Act.
“
Investment
Company Act
”
means
the Investment Company Act of 1940, as amended from time to time, or any
successor legislation.
“
Investment
Company Event
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Liquidation
”
has the
meaning set forth in paragraph 3 of Annex I.
“
Liquidation
Distribution
”
has the
meaning set forth in paragraph 3 of Annex I.
“
Majority
in liquidation amount of the Securities
”
means
Holder(s) of outstanding Securities voting together as a single class or,
as the
context may require, Holders of outstanding Capital Securities or Holders
of
outstanding Common Securities voting separately as a class, who are the
record
owners of more than 50% of the aggregate liquidation amount (including
the
stated amount that would be paid on redemption, liquidation or otherwise,
plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant
class.
“
Maturity
Date
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Officers’
Certificates
”
means,
with respect to any Person, a certificate signed by two Authorized Officers
of
such Person. Any Officers’ Certificate delivered with respect to compliance with
a condition or covenant providing for it in this Declaration shall
include:
(a)
a
statement that each officer signing the Certificate has read the covenant
or
condition and the definitions relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Certificate;
(c)
a
statement that each such officer has made such examination or investigation
as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of each such officer, such condition
or
covenant has been complied with.
“
OTS
”
has the
meaning set forth in paragraph 3 of Annex I.
“
Paying
Agent
”
has the
meaning specified in Section 6.2.
“
Person
”
means a
legal person, including any individual, corporation, estate, partnership,
joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
“
Placement
Agreement
”
means
the Placement Agreement relating to the offering and sale of Capital Securities
in the form of Exhibit C.
“
Primary
Treasury Dealer
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Property
Account
”
has the
meaning set forth in Section 2.8 (c).
“
Pro
Rata
”
has the
meaning set forth in paragraph 8 of Annex I.
“
Quorum
”
means a
majority of the Administrators or, if there are only two Administrators,
both of
them.
“
Quotation
Agent
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Redemption
Date
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Redemption/Distribution
Notice
”
has the
meaning set forth in paragraph 4(e) of Annex I.
“
Redemption
Price
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Reference
Treasury Dealer
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Reference
Treasury Dealer Quotations
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Registrar
”
has the
meaning set forth in Section 6.2.
“
Relevant
Trustee
”
has the
meaning set forth in Section 4.5(a).
“
Responsible
Officer
”
means,
with respect to the Institutional Trustee, any officer within the Corporate
Trust Office of the Institutional Trustee, including any vice-president,
any
assistant vice-president, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or other officer of the Corporate Trust Office
of
the Institutional Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect
to a particular corporate trust matter, any other officer to whom such
matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“
Restricted
Securities Legend
”
has the
meaning set forth in Section 8.2(b).
“
Rule 3a-5
”
means
Rule 3a-5 under the Investment Company Act.
“
Rule 3a-7
”
means
Rule 3a-7 under the Investment Company Act.
“
Securities
”
means
the Common Securities and the Capital Securities.
“
Securities
Act
”
means
the Securities Act of 1933, as amended from time to time, or any successor
legislation.
“
Special
Event
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Special
Redemption Date
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Special
Redemption Price
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Sponsor
”
means
Washington Trust Bancorp, Inc., a Rhode Island corporation, or any successor
entity in a merger, consolidation or amalgamation, in its capacity as sponsor
of
the Trust.
“
Statutory
Trust Act
”
means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§ 3801,
et
seq.
as may
be amended from time to time.
“
Successor
Entity
”
has the
meaning set forth in Section 2.15(b).
“
Successor
Delaware Trustee
”
has the
meaning set forth in Section 4.5(e).
“
Successor
Institutional Trustee
”
has the
meaning set forth in Section 4.5(b).
“
Successor
Securities
”
has the
meaning set forth in Section 2.15(b).
“
Super
Majority
”
has the
meaning set forth in paragraph 5(b) of Annex I.
“
Tax
Event
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
10%
in
liquidation amount of the Securities
”
means
Holder(s) of outstanding Securities voting together as a single class or,
as the
context may require, Holders of outstanding Capital Securities or Holders
of
outstanding Common Securities voting separately as a class, who are the
record
owners of 10% or more of the aggregate liquidation amount (including the
stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued
and unpaid Distributions to the date upon which the voting percentages
are
determined) of all outstanding Securities of the relevant class.
“
3-Month
LIBOR
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Transfer
Agent
”
has the
meaning set forth in Section 6.2.
“
Treasury
Rate
”
has the
meaning set forth in paragraph 4(a) of Annex I.
“
Treasury
Regulations
”
means
the income tax regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
“
Trust
Property
”
means
(a) the Debentures, (b) any cash on deposit in, or owing
to, the
Property 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 Institutional Trustee pursuant to the trusts of this
Declaration.
“
Trustee
”
or
“
Trustees
”
means
each Person who has signed this Declaration as a trustee, so long as such
Person
shall continue in office in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed, qualified and serving
as
Trustees in accordance with the provisions hereof, and references herein
to a
Trustee or the Trustees shall refer to such Person or Persons solely in
their
capacity as trustees hereunder.
“
U.S.
Person
”
means a
United States Person as defined in Section 7701(a)(30) of the Code.
ARTICLE
II
ORGANIZATION
Section
2.1.
Name
.
The
Trust
is named “WT Capital Trust I,” as such name may be modified from time
to time by the Administrators following written notice to the Holders of
the
Securities. The Trust’s activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrators.
Section
2.2.
Office.
The
address of the principal office of the Trust is c/o Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600.
On at least 10 Business Days written notice to the Holders of the
Securities, the Administrators may designate another principal office,
which
shall be in a state of the United States or in the District of
Columbia.
Section
2.3.
Purpose
.
The
exclusive purposes and functions of the Trust are (a) to issue and
sell the
Securities representing undivided beneficial interests in the assets of
the
Trust, (b) to invest the gross proceeds from such sale to acquire
the
Debentures, (c) to facilitate direct investment in the assets of
the Trust
through issuance of the Common Securities and the Capital Securities and
(d) except as otherwise limited herein, to engage in only those
other
activities necessary or incidental thereto. The Trust shall not borrow
money,
issue debt or reinvest proceeds derived from investments, pledge any of
its
assets, or otherwise undertake (or permit to be undertaken) any activity
that
would cause the Trust not to be classified for United States federal income
tax
purposes as a grantor trust.
Section
2.4.
Authority.
Except
as
specifically provided in this Declaration, the Institutional Trustee shall
have
exclusive and complete authority to carry out the purposes of the Trust.
An
action taken by a Trustee in accordance with its powers shall constitute
the act
of and serve to bind the Trust. In dealing with the Trustees acting on
behalf of
the Trust, no Person shall be required to inquire into the authority of
the
Trustees to bind the Trust. Persons dealing with the Trust are entitled
to rely
conclusively on the power and authority of the Trustees as set forth in
this
Declaration. The Administrators shall have only those ministerial duties
set
forth herein with respect to accomplishing the purposes of the Trust and
are not
intended to be trustees or fiduciaries with respect to the Trust or the
Holders.
The Institutional Trustee shall have the right, but shall not be obligated
except as provided in Section 2.6, to perform those duties assigned to
the
Administrators.
Section
2.5.
Title
to Property of the Trust
.
Except
as
provided in Section 2.8 with respect to the Debentures and the Property
Account
or as otherwise provided in this Declaration, legal title to all assets
of the
Trust shall be vested in the Trust. The Holders shall not have legal title
to
any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
Section
2.6.
Powers
and Duties of the Trustees and the Administrators.
(a)
The
Trustees and the Administrators shall conduct the affairs of the Trust
in
accordance with the terms of this Declaration. Subject to the limitations
set
forth in paragraph (b) of this Section, and in accordance with the
following provisions (i) and (ii), the Trustees and the Administrators
shall have the authority to enter into all transactions and agreements
determined by the Institutional Trustee to be appropriate in exercising
the
authority, express or implied, otherwise granted to the Trustees or the
Administrators, as the case may be, under this Declaration, and to perform
all
acts in furtherance thereof, including without limitation, the
following:
(i)
Each
Administrator shall have the power and authority to act on behalf of the
Trust
with respect to the following matters:
(A)
the
issuance and sale of the Securities;
(B)
to
cause
the Trust to enter into, and to execute and deliver on behalf of the Trust,
such
agreements as may be necessary or desirable in connection with the purposes
and
function of the Trust, including agreements with the Paying Agent;
(C)
ensuring
compliance with the Securities Act, applicable state securities or blue
sky
laws;
(D)
the
sending of notices (other than notices of default), and other information
regarding the Securities and the Debentures to the Holders in accordance
with
this Declaration;
(E)
the
consent to the appointment of a Paying Agent, Transfer Agent and Registrar
in
accordance with this Declaration, which consent shall not be unreasonably
withheld or delayed;
(F)
execution
and delivery of the Securities in accordance with this Declaration;
(G)
execution
and delivery of closing certificates pursuant to the Placement Agreement
and the
application for a taxpayer identification number;
(H)
unless
otherwise determined by the Holders of a Majority in liquidation amount
of the
Securities or as otherwise required by the Statutory Trust Act, to execute
on
behalf of the Trust (either acting alone or together with any or all of
the
Administrators) any documents that the Administrators have the power to
execute
pursuant to this Declaration;
(I)
the
taking of any action incidental to the foregoing as the Institutional Trustee
may from time to time determine is necessary or advisable to give effect
to the
terms of this Declaration for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
(J)
to
establish a record date with respect to all actions to be taken hereunder
that
require a record date be established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders
of
Capital Securities and Holders of Common Securities as to such actions
and
applicable record dates; and
(K)
to
duly
prepare and file all applicable tax returns and tax information reports
that are
required to be filed with respect to the Trust on behalf of the
Trust.
(ii)
As
among
the Trustees and the Administrators, the Institutional Trustee shall have
the
power, duty and authority to act on behalf of the Trust with respect to
the
following matters:
(A)
the
establishment of the Property Account;
(B)
the
receipt of the Debentures;
(C)
the
collection of interest, principal and any other payments made in respect
of the
Debentures in the Property Account;
(D)
the
distribution through the Paying Agent of amounts owed to the Holders in
respect
of the 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 Securities
and
the Debentures to the Holders in accordance with this Declaration;
(G)
the
distribution of the Trust Property in accordance with the terms of this
Declaration;
(H)
to
the
extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(I)
after
any
Event of Default (
provided
that
such Event of Default is not by or with respect to the Institutional Trustee)
the taking of any action incidental to the foregoing as the Institutional
Trustee may from time to time determine is necessary or advisable to give
effect
to the terms of this Declaration 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)
to
take
all action that may be necessary for the preservation and the continuation
of
the Trust’s valid existence, rights, franchises and privileges as a statutory
trust under the laws of the State of Delaware.
(iii)
The
Institutional Trustee shall have the power and authority to act on behalf
of the
Trust with respect to any of the duties, liabilities, powers or the authority
of
the Administrators set forth in Section 2.6(a)(i)(D), (E) and (F)
herein
but shall not have a duty to do any such act unless specifically requested
to do
so in writing by the Sponsor, and shall then be fully protected in acting
pursuant to such written request; and in the event of a conflict between
the
action of the Administrators and the action of the Institutional Trustee,
the
action of the Institutional Trustee shall prevail.
(b)
So
long
as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may
cause the
Trust to (i) acquire any investments or engage in any activities
not
authorized by this Declaration, (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 (x) to cause
the
Trust to fail or cease to qualify as a “grantor trust” for United States federal
income tax purposes or (y) to require the trust to register as an Investment
Company under the Investment Company Act, (iv) incur any indebtedness
for
borrowed money or issue any other debt or (v) take or consent to
any action
that would result in the placement of a lien on any of the Trust Property.
The
Institutional Trustee shall, at the sole cost and expense of the Trust,
defend
all claims and demands of all Persons at any time claiming any lien on
any of
the Trust Property adverse to the interest of the Trust or the Holders
in their
capacity as Holders.
(c)
In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect
to, or
effect on behalf of the Trust,
the
following (and any actions taken by the Sponsor in furtherance of the
following
prior to the date of this Declaration are hereby ratified and confirmed
in all
respects):
(i)
the
taking of any action necessary to obtain an exemption from the Securities
Act;
(ii)
the
determination of the States in which to take appropriate action to qualify
or
register for sale all or part of the Capital Securities and the determination
of
any and all such acts, other than actions which must be taken by or on
behalf of
the Trust, and the advice to the Administrators of actions they must take
on
behalf of the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the Trust,
as
the Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such States in connection with the sale of the Capital
Securities;
(iii)
the
negotiation of the terms of, and the execution and delivery of, the Placement
Agreement providing for the sale of the Capital Securities; and
(iv)
the
taking of any other actions necessary or desirable to carry out any of
the
foregoing activities.
(d)
Notwithstanding
anything herein to the contrary, the Administrators and the Holders of
a
Majority in liquidation amount of the Common Securities are authorized
and
directed to conduct the affairs of the Trust and to operate the Trust so
that
the Trust will not (i) be deemed to be an Investment Company required to
be
registered under the Investment Company Act, and (ii) fail to be
classified
as a “grantor trust” for United States federal income tax purposes. The
Administrators and the Holders of a Majority in liquidation amount of the
Common
Securities shall not take any action inconsistent with the treatment of
the
Debentures as indebtedness of the Debenture Issuer for United States federal
income tax
purposes.
In this connection, the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities are authorized to take any
action,
not inconsistent with applicable laws, the Certificate of Trust or this
Declaration, as amended from time to time, that each of the Administrators
and
the Holders of a Majority in liquidation amount of the Common Securities
determines in their discretion to be necessary or desirable for such
purposes.
(e)
All
expenses incurred by the Administrators or the Trustees pursuant to this
Section
2.6 shall be reimbursed by the Sponsor, and the Trustees and the Administrators
shall have no obligations with respect to such expenses (for purposes of
clarification, this Section 2.6(e) does not contemplate the payment
by the
Sponsor of acceptance or annual administration fees owing to the Trustees
under
this Declaration or the fees and expenses of the Trustees’ counsel in connection
with the closing of the transactions contemplated by this
Declaration).
(f)
The
assets of the Trust shall consist of the Trust Property.
(g)
Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by
the
Institutional Trustee and the Administrators for the benefit of the Trust
in
accordance with this Declaration.
(h)
If
the
Institutional Trustee or any Holder has instituted any proceeding to enforce
any
right or remedy under this Declaration and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the
Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively
to
their former positions hereunder, and thereafter
all
rights and remedies of the Institutional Trustee and the Holders shall
continue
as though no such proceeding had been instituted.
Section
2.7.
Prohibition
of Actions by the Trust and the Institutional Trustee.
(a)
The
Trust
shall not, and the Institutional Trustee shall cause the Trust not to,
engage in
any activity other than as required or authorized by this Declaration.
In
particular, the Trust shall not and the Institutional Trustee shall cause
the
Trust not to:
(i)
invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the
terms
of this Declaration and of the Securities;
(ii)
acquire
any assets other than as expressly provided herein;
(iii)
possess
Trust Property for other than a Trust purpose;
(iv)
make
any
loans or incur any indebtedness other than loans represented by the
Debentures;
(v)
possess
any power or otherwise act in such a way as to vary the Trust assets or
the
terms of the Securities in any way whatsoever other than as expressly provided
herein;
(vi)
issue
any
securities or other evidences of beneficial ownership of, or beneficial
interest
in, the Trust other than the Securities;
(vii)
carry
on
any “trade or business” as that phrase is used in the Code; or
(viii)
other
than as provided in this Declaration (including Annex I), (A) direct
the time, method and place of exercising any trust or power conferred upon
the
Debenture Trustee with respect to the Debentures, (B) waive any
past
default that is waivable under the Indenture, (C) exercise any right
to
rescind or annul any declaration that the principal of all the Debentures
shall
be due and payable, or (D) consent to any amendment, modification
or
termination of the Indenture or the Debentures where such consent shall
be
required unless the Trust shall have received a written opinion of counsel
to
the effect that such modification will not cause the Trust to cease to
be
classified as a “grantor trust” for United States federal income tax
purposes.
Section
2.8.
Powers
and Duties of the Institutional Trustee.
(a)
The
legal
title to the Debentures shall be owned by and held of record in the name
of the
Institutional Trustee in trust for the benefit of the Trust and the Holders
of
the Securities. The right, title and interest of the Institutional Trustee
to
the Debentures shall vest automatically in each Person who may hereafter
be
appointed as Institutional Trustee in accordance with Section 4.5. Such
vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b)
The
Institutional Trustee shall not transfer its right, title and interest
in the
Debentures to the Administrators or to the Delaware Trustee.
(c)
The
Institutional Trustee shall:
(i)
establish
and maintain a segregated non-interest bearing trust account (the “
Property
Account
”)
in the
name of and under the exclusive control of the Institutional Trustee,
and
maintained in the Institutional Trustee’s trust department, on behalf of the
Holders of the Securities and, upon the receipt of payments of funds made
in
respect of the Debentures held by the Institutional Trustee, deposit such
funds
into the Property Account and make payments, or cause the Paying Agent
to make
payments, to the Holders of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with Section 5.1. Funds
in
the Property Account shall be held uninvested until disbursed in accordance
with
this Declaration;
(ii)
engage
in
such ministerial activities as shall be necessary or appropriate to effect
the
redemption of the Capital Securities and the Common Securities to the extent
the
Debentures are redeemed or mature; and
(iii)
upon
written notice of distribution issued by the Administrators in accordance
with
the terms of the Securities, engage in such ministerial activities as shall
be
necessary or appropriate to effect the distribution of the Debentures to
Holders
of Securities upon the occurrence of certain circumstances pursuant to
the terms
of the Securities.
(d)
The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands
of
or against, the Trust which arises out of or in connection with an Event
of
Default of which a Responsible Officer of the Institutional Trustee has
actual
knowledge or arises out of the Institutional Trustee’s duties and obligations
under this Declaration;
provided
,
however
,
that if
an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or
principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
the
Capital Securities may directly institute a proceeding for enforcement
of
payment to such Holder of the principal of or interest on the Debentures
having
a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a “
Direct
Action
”)
on or
after the respective due date specified in the Debentures. In connection
with
such Direct Action, the rights of the Holders of the Common Securities
will be
subrogated to the rights of such Holder of the Capital Securities to the
extent
of any payment made by the Debenture Issuer to such Holder of the Capital
Securities in such Direct Action;
provided
,
however
,
that no
Holder of the Common Securities may exercise such right of subrogation
so long
as an Event of Default with respect to the Capital Securities has occurred
and
is continuing.
(e)
The
Institutional Trustee shall continue to serve as a Trustee until
either:
(i)
the
Trust
has been completely liquidated and the proceeds of the liquidation distributed
to the Holders of the Securities pursuant to the terms of the Securities
and
this Declaration; or
(ii)
a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.5.
(f)
The
Institutional Trustee shall have the legal power to exercise all of the
rights,
powers and privileges of a Holder of the Debentures under the Indenture
and, if
an Event of Default occurs and is continuing, the Institutional Trustee
may, for
the benefit of Holders of the Securities, enforce its rights as holder
of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
The
Institutional Trustee must exercise the powers set forth in this Section
2.8 in
a manner that is consistent with the purposes and functions of the Trust
set out
in Section 2.3, and the Institutional Trustee shall not take any action
that is
inconsistent with the purposes and functions of the Trust set out in Section
2.3.
Section
2.9.
Certain
Duties and Responsibilities of the Trustees and
Administrators.
(a)
The
Institutional Trustee, before the occurrence of any Event of Default and
after
the curing or waiving of all such Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth
in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 6.7), the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise,
as a
prudent person would exercise or use under the circumstances in the conduct
of
his or her own affairs.
(b)
The
duties and responsibilities of the Trustees and the Administrators shall
be as
provided by this Declaration. Notwithstanding the foregoing, no provision
of
this Declaration shall require any Trustee or Administrator to expend or
risk
their own funds or otherwise incur any financial liability in the performance
of
any of their duties hereunder, or in the exercise of any of their rights
or
powers if it shall have reasonable grounds to believe that repayment of
such
funds or adequate protection against such risk of liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision
of
this Declaration relating to the conduct or affecting the liability of
or
affording protection to the Trustees or Administrators shall be subject
to the
provisions of this Article. Nothing in this Declaration shall be construed
to
relieve an Administrator or a Trustee from liability for its own negligent
act,
its own negligent failure to act, or its own willful misconduct. To the
extent
that, at law or in equity, a Trustee or an Administrator has duties and
liabilities relating to the Trust or to the Holders, such Trustee or such
Administrator shall not be liable to the Trust or to any Holder for such
Trustee’s or such Administrator’s good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrators or the Trustee
otherwise existing at law or in equity, are agreed by the Sponsor and the
Holders to replace such other duties and liabilities of the Administrators
or
the Trustees.
(c)
All
payments made by the Institutional Trustee or a Paying Agent in respect
of the
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 Institutional Trustee or
a Paying
Agent to make payments in accordance with the terms hereof. Each Holder,
by its
acceptance of a 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 Trustees and the
Administrators are not personally liable to it for any amount distributable
in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly
set
forth elsewhere in this Declaration.
(d)
The
Institutional Trustee shall not be liable for its own acts or omissions
hereunder except as a result of its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
the
Institutional Trustee shall not be liable for any error of judgment made
in good
faith by an Authorized Officer of the Institutional Trustee, unless it
shall be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(ii)
the
Institutional Trustee shall not be liable with respect to any action taken
or
omitted to be taken by it in good faith in accordance with the direction
of the
Holders of not less than a Majority in liquidation amount of the Capital
Securities or the Common Securities, as applicable, relating to the time,
method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon
the
Institutional Trustee under this Declaration;
(iii)
the
Institutional Trustee’s sole duty with respect to the custody, safekeeping and
physical preservation of the Debentures and the Property Account shall
be to
deal with such property in a similar manner as the Institutional Trustee
deals
with similar property for its fiduciary accounts generally, subject to
the
protections and limitations on liability afforded to the Institutional
Trustee
under this Declaration;
(iv)
the
Institutional Trustee shall not be liable for any interest on any money
received
by it except as it may otherwise agree in writing with the Sponsor; and
money
held by the Institutional Trustee need not be segregated from other funds
held
by it except in relation to the Property Account maintained by the Institutional
Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
required by law; and
(v)
the
Institutional Trustee shall not be responsible for monitoring the compliance
by
the Administrators or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default
or
misconduct of the Administrators or the Sponsor.
Section
2.10.
Certain
Rights of Institutional Trustee.
Subject
to the provisions of Section 2.9:
(a)
the
Institutional Trustee may conclusively rely and shall fully be protected
in
acting or refraining from acting in good faith upon any resolution, opinion
of
counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, 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, sent or presented
by the
proper party or parties;
(b)
if
(i) in performing its duties under this Declaration, the Institutional
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any
other
provisions contained herein, or (iii) the Institutional Trustee
is unsure
of the application of any provision of this Declaration, then, except as
to any
matter as to which the Holders of Capital Securities are entitled to vote
under
the terms of this Declaration, the Institutional Trustee may deliver a
notice to
the Sponsor requesting the Sponsor’s written instructions as to the course of
action to be taken and the Institutional Trustee shall take such action,
or
refrain from taking such action, as the Institutional Trustee shall be
instructed in writing, in which event the Institutional Trustee shall have
no
liability except for its own negligence or willful misconduct;
(c)
any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers’
Certificate;
(d)
whenever
in the administration of this Declaration, the Institutional Trustee shall
deem
it desirable that a matter be proved or established before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may request and conclusively
rely upon an Officers’ Certificate as to factual matters which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrators;
(e)
the
Institutional 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 reregistration thereof;
(f)
the
Institutional Trustee may consult with counsel of its selection (which
counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice
of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and
in
reliance thereon and in accordance with such advice; the Institutional
Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(g)
the
Institutional Trustee shall be under no obligation to exercise any of the
rights
or powers vested in it by this Declaration at the request or direction
of any of
the Holders pursuant to this Declaration, unless such Holders shall have
offered
to the Institutional Trustee security or indemnity reasonably satisfactory
to it
against the costs, expenses and liabilities which might be incurred by
it in
compliance with such request or direction;
provided
,
that
nothing contained in this Section 2.10(g) shall be taken to relieve the
Institutional Trustee, subject to Section 2.9(b), upon the occurrence of
an
Event of Default (that has not been cured or waived pursuant to
Section 6.7), to exercise such of the rights and powers vested in
it by
this Declaration, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct
of his or her own affairs;
(h)
the
Institutional 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 Institutional
Trustee may make such further inquiry or investigation into such facts
or
matters as it may see fit;
(i)
the
Institutional 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 and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of or for the supervision of, any
such
agent or attorney appointed with due care by it hereunder;
(j)
whenever
in the administration of this Declaration the Institutional Trustee shall
deem
it desirable to receive instructions with respect to enforcing any remedy
or
right or taking any other action hereunder the Institutional Trustee
(i) may request instructions from the Holders of the Capital Securities
which instructions may only be given by the Holders of the same proportion
in
liquidation amount of the Capital Securities as would be entitled to direct
the
Institutional Trustee under the terms of the Capital Securities in respect
of
such remedy, right or action, (ii) may refrain from enforcing such
remedy
or right or taking such other action until such instructions are received,
and
(iii) shall be fully protected in acting in accordance with such
instructions;
(k)
except
as
otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary
under
the provisions of this Declaration;
(l)
when
the
Institutional Trustee incurs expenses or renders services in connection
with a
Bankruptcy Event, such expenses (including the fees and expenses of its
counsel)
and the compensation for such services are intended to constitute expenses
of
administration under any bankruptcy law or law relating to creditors rights
generally;
(m)
the
Institutional Trustee shall not be charged with knowledge of an Event of
Default
unless a Responsible Officer of the Institutional Trustee obtains actual
knowledge of such event or the Institutional Trustee receives written notice
of
such event from any Holder, the Sponsor or the Debenture Trustee;
(n)
any
action taken by the Institutional Trustee or its agents hereunder shall
bind the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform
any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any
of the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee’s or its agent’s taking such action;
and
(o)
no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any
right,
power, duty or obligation conferred or imposed on it, in any jurisdiction
in
which it shall be illegal, or in which the Institutional Trustee shall
be
unqualified or incompetent in accordance with applicable law, to perform
any
such act or acts, or to exercise any such right, power, duty or obligation.
No
permissive power or authority available to the Institutional Trustee shall
be
construed to be a duty.
Section
2.11.
Delaware
Trustee
.
Notwithstanding
any other provision of this Declaration other than Section 4.1, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of any of the Trustees
or
the Administrators described in this Declaration (except as may be required
under the Statutory Trust Act). Except as set forth in Section 4.1, the
Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling
the
requirements of § 3807 of the Statutory Trust Act.
Section
2.12.
Execution
of Documents
.
Unless
otherwise determined in writing by the Institutional Trustee, and except
as
otherwise required by the Statutory Trust Act, the Institutional Trustee,
or any
one or more of the Administrators, as the case may be, is authorized to
execute
on behalf of the Trust any documents that the Trustees or the Administrators,
as
the case may be, have the power and authority to execute pursuant to Section
2.6.
Section
2.13.
Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained in this Declaration and the Securities shall be taken
as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for
their correctness. The Trustees make no representations as to the value
or
condition of the property of the Trust or any part thereof. The Trustees
make no
representations as to the validity or sufficiency of this Declaration,
the
Debentures or the Securities.
Section
2.14.
Duration
of Trust.
The
Trust, unless earlier dissolved pursuant to the provisions of Article VII
hereof, shall be in existence for 35 years from the Closing
Date.
Section
2.15.
Mergers.
(a)
The
Trust
may not consolidate, amalgamate, merge with or into, or be replaced by,
or
convey, transfer or lease its properties and assets substantially as an
entirety
to any corporation or other body, except as described in Section 2.15(b)
and (c)
and except in connection with the liquidation of the Trust and the distribution
of the Debentures to Holders of Securities pursuant to Section 7.1(a)(iv)
of the
Declaration or Section 4 of Annex I.
(b)
The
Trust
may, with the consent of the Institutional Trustee and without the consent
of
the Holders of the Capital Securities, consolidate, amalgamate, merge with
or
into, or be replaced by a trust organized as such under the laws of any
state;
provided that:
(i)
if
the
Trust is not the surviving entity, such successor entity (the “
Successor
Entity
”)
either:
(A)
expressly
assumes all of the obligations of the Trust under the Securities;
or
(B)
substitutes
for the Securities other securities having substantially the same terms
as the
Securities (the “
Successor
Securities
”)
so
that the Successor Securities rank the same as the Securities rank with
respect
to Distributions and payments upon Liquidation, redemption and
otherwise;
(ii)
the
Sponsor expressly appoints a trustee of the Successor Entity that possesses
substantially the same powers and duties as the Institutional Trustee as
the
Holder of the Debentures;
(iii)
s
uch
merger, consolidation, amalgamation or replacement does not adversely affect
the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect;
(iv)
the
Institutional Trustee receives written confirmation from Moody’s Investor
Services, Inc. and any other nationally recognized statistical rating
organization that rates securities issued by the initial purchaser of the
Capital Securities that it will not reduce or withdraw the rating of any
such
securities because of such merger, conversion, consolidation, amalgamation
or
replacement;
(v)
such
Successor Entity has a purpose substantially identical to that of the
Trust;
(vi)
prior
to
such merger, consolidation, amalgamation or replacement, the Trust has
received
an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A)
such
merger, consolidation, amalgamation or replacement does not adversely affect
the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect;
(B)
following
such merger, consolidation, amalgamation or replacement, neither the Trust
nor
the Successor Entity will be required to register as an Investment Company;
and
(C)
following
such merger, consolidation, amalgamation or replacement, the Trust (or
the
Successor Entity) will continue to be classified as a “grantor trust” for United
States federal income tax purposes;
(vii)
the
Sponsor guarantees the obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Guarantee;
(viii)
the
Sponsor owns 100% of the common securities of any Successor Entity;
and
(ix)
prior
to
such merger, consolidation, amalgamation or replacement, the Institutional
Trustee shall have received an Officers’ Certificate of the Administrators and
an opinion of counsel, each to the effect that all conditions precedent
under
this Section 2.15(b) to such transaction have been satisfied.
(c)
Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders
of 100%
in aggregate liquidation amount of the Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if
such
consolidation, amalgamation, merger or replacement would cause the Trust
or
Successor
Entity to be classified as other than a grantor trust for United States
federal
income tax purposes.
ARTICLE
III
SPONSOR
Section
3.1.
Sponsor’s
Purchase of Common Securities.
On
the
Closing Date, the Sponsor will purchase all of the Common Securities issued
by
the Trust in an amount at least equal to 3% of the capital of the Trust,
at the
same time as the Capital Securities are sold.
Section
3.2.
Responsibilities
of the Sponsor
.
In
connection with the issue and sale of the Capital Securities, the Sponsor
shall
have the exclusive right and responsibility to engage in, or direct the
Administrators to engage in, the following activities:
(a)
to
determine the States in which to take appropriate action to qualify the
Trust or
to qualify or register for sale all or part of the Capital Securities and
to do
any and all such acts, other than actions which must be taken by the Trust,
and
advise the Trust of actions it must take, and prepare for execution and
filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any
such
States, to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which it was
created; and
(b)
to
negotiate the terms of and/or execute on behalf of the Trust, the Placement
Agreement and other related agreements providing for the sale of the Capital
Securities.
Section
3.3.
Expenses
.
In
connection with the offering, sale and issuance of the Debentures to the
Trust
and in connection with the sale of the Securities by the Trust, the Sponsor,
in
its capacity as Debenture Issuer, shall:
(a)
pay
all reasonable costs and expenses owing to the Debenture Trustee pursuant
to
Section 6.6 of the Indenture;
(b)
be
responsible for and shall pay all debts and obligations (other than with
respect
to the Securities) and all costs and expenses of the Trust, the offering,
sale
and issuance of the Securities (including fees to the placement agents
in
connection therewith), the costs and expenses (including reasonable counsel
fees
and expenses) of the Institutional Trustee and the Administrators, the
costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, Transfer Agents, duplicating, travel
and
telephone and other telecommunications expenses and costs and expenses
incurred
in connection with the acquisition, financing, and disposition of Trust
assets
and the enforcement by the Institutional Trustee of the rights of the Holders
(for purposes of clarification, this Section 3.3(b) does not contemplate
the
payment by the Sponsor of acceptance or annual administration fees owing
to the
Trustees pursuant to the services to be provided by the Trustees under
this
Declaration or the fees and expenses of the Trustees’ counsel in connection with
the closing of the transactions contemplated by this Declaration);
and
(c)
pay
any
and all taxes (other than United States withholding taxes attributable
to the
Trust or its assets) and all liabilities, costs and expenses with respect
to
such taxes of the Trust.
The
Sponsor’s obligations under this Section 3.3 shall be for the benefit of,
and shall be enforceable by, any Person to whom such debts, obligations,
costs,
expenses and taxes are owed (a
“
Creditor
”)
whether or not such Creditor has received notice hereof. Any such Creditor
may
enforce the Sponsor’s obligations under this Section 3.3 directly against
the Sponsor and the Sponsor irrevocably waives any right or remedy to
require
that any such Creditor take any action against the Trust or any other
Person
before proceeding against the Sponsor. The Sponsor agrees to execute
such
additional agreements as may be necessary or desirable in order to give
full
effect to the provisions of this Section 3.3.
Section
3.4.
Right
to Proceed
.
The
Sponsor acknowledges the rights of Holders to institute a Direct Action
as set
forth in Section 2.8(d) hereto.
ARTICLE
IV
INSTITUTIONAL
TRUSTEE AND ADMINISTRATORS
Section
4.1.
Number
of Trustees
.
The
number of Trustees shall initially be two, and;
(a)
at
any
time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
(b)
after
the
issuance of any Securities, the number of Trustees may be increased or
decreased
by vote of the Holder of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holder of the Common
Securities;
provided
,
however
,
that
there shall be a Delaware Trustee if required by Section 4.2; and there
shall
always be one Trustee who shall be the Institutional Trustee, and such
Trustee
may also serve as Delaware Trustee if it meets the applicable requirements,
in
which case Section 2.11 shall have no application to such entity in its
capacity
as Institutional Trustee.
Section
4.2.
Delaware
Trustee; Eligibility
.
(a)
If
required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall
be:
(i)
a
natural
person at least 21 years of age who is a resident of the State of Delaware;
or
(ii)
if
not a
natural person, an entity which is organized under the laws of the United
States
or any state thereof or the District of Columbia, has its principal place
of
business in the State of Delaware, and otherwise meets the requirements
of
applicable law, including § 3807 of the Statutory Trust Act.
(b)
the
initial Delaware Trustee shall be Wilmington Trust Company.
Section
4.3.
Institutional
Trustee; Eligibility.
(a)
There
shall at all times be one Trustee which shall:
(i)
not
be an
Affiliate of the Sponsor;
(ii)
not
offer
or provide credit or credit enhancement to the Trust; and
(iii)
be
a
banking corporation or trust company organized and doing business under
the laws
of the United States of America or any state thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000.00), and subject to supervision or examination by Federal,
state,
or District of Columbia authority. If such corporation publishes
reports
of condition at least annually, pursuant to law or to the requirements
of the
supervising or examining authority referred to above, then for the purposes
of
this Section 4.3(a)(iii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most
recent report of condition so published.
(b)
If
at any
time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the
manner
and with the effect set forth in Section 4.5.
(c)
If
the
Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act of 1939, as amended,
the
Institutional Trustee shall either eliminate such interest or resign, to
the
extent and in the manner provided by, and subject to this
Declaration.
(d)
The
initial Institutional Trustee shall be Wilmington Trust Company.
Section
4.4.
Administrators
.
Each
Administrator shall be a U.S. Person, 21 years of age or older and authorized
to
bind the Sponsor. The initial Administrators shall be David V. Devault,
John C. Warren and John F. Treanor. There shall at all times
be at
least one Administrator. Except where a requirement for action by a specific
number of Administrators is expressly set forth in this Declaration and
except
with respect to any action the taking of which is the subject of a meeting
of
the Administrators, any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may
be
exercised by, or with the consent of, any one such Administrator.
Section
4.5.
Appointment,
Removal and Resignation of Trustees and Administrators
.
(a)
No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
in
accordance with the applicable requirements of this Section 4.5.
(b)
Subject
to Section 4.5(a), a Relevant Trustee may resign at any time by giving
written
notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee. Upon the resignation of the Institutional Trustee, the
Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges
to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense
and
charges (the “Successor Institutional Trustee”). If the instrument of acceptance
by the successor Relevant Trustee required by this Section 4.5 shall not
have
been delivered to the Relevant Trustee within 60 days after the giving
of such
notice of resignation or delivery of the instrument of removal, the Relevant
Trustee may petition, at the expense of the Trust, any federal, state or
District of Columbia court of competent jurisdiction for the appointment
of a
successor Relevant Trustee. Such court may thereupon, after prescribing
such
notice, if any, as it may deem proper, appoint a Relevant Trustee. The
Institutional Trustee shall have no liability for the selection of such
successor pursuant to this Section 4.5.
(c)
Unless
an
Event of Default shall have occurred and be continuing, any Trustee may
be
removed at any time by an act of the Holders of a Majority in liquidation
amount
of the Common Securities. If any Trustee shall be so removed, the Holders
of the
Common Securities, by act of the Holders of a Majority in liquidation amount
of
the Common Securities delivered to the Relevant Trustee, shall promptly
appoint
a successor Relevant Trustee, and such successor Trustee shall comply with
the
applicable requirements of this Section 4.5. If an Event of Default shall
have
occurred and be continuing, the Institutional Trustee or the Delaware Trustee,
or both of them, may be removed by the act of the Holders of a Majority
in
liquidation amount of the Capital Securities, delivered to the Relevant
Trustee
(in
its
individual capacity and on behalf of the Trust). If any Trustee shall
be so
removed, the Holders of Capital Securities, by act of the Holders of
a Majority
in liquidation amount of the Capital Securities then outstanding delivered
to
the Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or
Trustees, and such successor Trustee shall comply with the applicable
requirements of this Section 4.5. If no successor Relevant Trustee shall
have
been so appointed by the Holders of a Majority in liquidation amount
of the
Capital Securities and accepted appointment in the manner required by
this
Section 4.5 within 30 days after delivery of an instrument of removal,
the
Relevant Trustee or any Holder who has been a Holder of the Securities
for at
least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent
jurisdiction for the appointment of a successor Relevant Trustee. Such
court may
thereupon, after prescribing such notice, if any, as it may deem proper,
appoint
a successor Relevant Trustee or Trustees.
(d)
The
Institutional Trustee shall give notice of each resignation and each removal
of
a Trustee and each appointment of a successor Trustee to all Holders and
to the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee.
(e)
Notwithstanding
the foregoing or any other provision of this Declaration, in the event
a
Delaware Trustee who is a natural person dies or is adjudged by a court
to have
become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 4.5 (with the successor being a Person who
satisfies the eligibility requirement for a Delaware Trustee set forth
in this
Declaration) (the “Successor Delaware Trustee”).
(f)
In
case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
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 Securities
and
the Trust and (b) shall add to or change any of the provisions of
this
Declaration as shall be necessary to provide for or facilitate the
administration of the 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, shall become vested
with
all the rights, powers, trusts and duties of the retiring Relevant Trustee;
but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held
by such
retiring Relevant Trustee hereunder with respect to the Securities and
the Trust
subject to the payment of all unpaid fees, expenses and indemnities of
such
retiring Relevant Trustee.
(g)
No
Institutional Trustee or Delaware Trustee shall be liable for the acts
or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(h)
The
Holders of the Capital Securities will have no right to vote to appoint,
remove
or replace the Administrators, which voting rights are vested exclusively
in the
Holders of the Common Securities.
(i)
Any
successor Delaware Trustee shall file an amendment to the Certificate of
Trust
with the Secretary of State of the State of Delaware identifying the name
and
principal place of business of such Delaware Trustee in the State of
Delaware.
Section
4.6.
Vacancies
Among Trustees
.
If
a
Trustee ceases to hold office for any reason and the number of Trustees
is not
reduced pursuant to Section 4.1, a vacancy shall occur. A resolution certifying
the existence of such vacancy by the Trustees or, if there are more than
two, a
majority of the Trustees, shall be conclusive evidence of the existence
of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with
Section 4.5.
Section
4.7.
Effect
of Vacancies.
The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not
operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy
is
filled by the appointment of a Trustee in accordance with Section 4.5,
the
Institutional Trustee shall have all the powers granted to the Trustees
and
shall discharge all the duties imposed upon the Trustees by this
Declaration.
Section
4.8.
Meetings
of the Trustees and the Administrators.
Meetings
of the Administrators shall be held from time to time upon the call of
an
Administrator. Regular meetings of the Administrators may be held in person
in
the United States or by telephone, at a place (if applicable) and time
fixed by
resolution of the Administrators. Notice of any in-person meetings of the
Trustees with the Administrators or meetings of the Administrators shall
be hand
delivered or otherwise delivered in writing (including by facsimile, with
a hard
copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Trustees with the Administrators
or
meetings of the Administrators or any committee thereof shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard
copy by
overnight courier) not less than 24 hours before a meeting. Notices
shall
contain a brief statement of the time, place and anticipated purposes of
the
meeting. The presence (whether in person or by telephone) of a Trustee
or an
Administrator, as the case may be, at a meeting shall constitute a waiver
of
notice of such meeting except where the Trustee or an Administrator, as
the case
may be, attends a meeting for the express purpose of objecting to the
transaction of any activity on the grounds that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration,
any
action of the Trustees or the Administrators, as the case may be, may be
taken
at a meeting by vote of a majority of the Trustees or the Administrators
present
(whether in person or by telephone) and eligible to vote with respect to
such
matter, provided that a Quorum is present, or without a meeting by the
unanimous
written consent of the Trustees or the Administrators. Meetings of the
Trustees
and the Administrators together shall be held from time to time upon the
call of
any Trustee or an Administrator.
Section
4.9.
Delegation
of Power.
(a)
Any
Administrator may, by power of attorney consistent with applicable law,
delegate
to any other natural person over the age of 21 that is a U.S. Person his
or her
power for the purpose of executing any documents contemplated in Section
2.6;
and
(b)
the
Administrators 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 Trust or the names of the Administrators or otherwise as
the
Administrators may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust,
as set
forth herein.
Section
4.10.
Conversion,
Consolidation or Succession to Business.
Any
Person into which the Institutional 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 the
Institutional Trustee or the Delaware Trustee shall be a party, or any
Person
succeeding to all or substantially all the corporate trust business of
the
Institutional Trustee or the Delaware Trustee shall be the successor of
the
Institutional Trustee or the Delaware Trustee hereunder, provided such
Person
shall
be
otherwise qualified and eligible under this Article and,
provided
,
further
,
that
such Person shall file an amendment to the Certificate of Trust with
the
Secretary of State of the State of Delaware as contemplated in Section
4.5(i).
ARTICLE
V
DISTRIBUTIONS
Section
5.1.
Distributions
.
Holders
shall receive Distributions in accordance with the applicable terms of
the
relevant Holder’s Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences
set
forth in their respective terms. If and to the extent that the Debenture
Issuer
makes a payment of Interest or any principal on the Debentures held by
the
Institutional Trustee, the Institutional Trustee shall and is directed,
to the
extent funds are available for that purpose, to make a distribution (a
“
Distribution
”)
of
such amounts to Holders.
ARTICLE
VI
ISSUANCE
OF SECURITIES
Section
6.1.
General
Provisions Regarding Securities.
(a)
The
Administrators shall, on behalf of the Trust, issue one series of capital
securities substantially in the form of Exhibit A-1 representing
undivided
beneficial interests in the assets of the Trust having such terms as are
set
forth in Annex I and one series of common securities representing
undivided
beneficial interests in the assets of the Trust having such terms as are
set
forth in Annex I. The Trust shall issue no securities or other interests
in
the assets of the Trust other than the Capital Securities and the Common
Securities. The Capital Securities rank
pari
passu
to, and
payment thereon shall be made Pro Rata with, the Common Securities except
that,
where an Event of Default has occurred and is continuing, the rights of
Holders
of the Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the rights
to
payment of the Holders of the Capital Securities as set forth in
Annex I.
(b)
The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature
of any
Administrator. In case any Administrator of
the
Trust
who shall have signed any of the Securities shall cease to be such Administrator
before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed
such
Certificates had not ceased to be such Administrator, and any Certificate
may be
signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be an Administrator of the Trust, although
at
the date of the execution and delivery of the Declaration any such person
was
not such an Administrator. A Capital Security shall not be valid until
authenticated by the facsimile or manual signature of an Authorized Officer
of
the Institutional Trustee. Such signature shall be conclusive evidence
that the
Capital Security has been authenticated under this Declaration. Upon written
order of the Trust signed by one Administrator, the Institutional Trustee
shall
authenticate the Capital Securities for original issue. The Institutional
Trustee may appoint an authenticating agent that is a U.S. Person acceptable
to
the Trust to authenticate the Capital Securities. A Common Security need
not be
so authenticated.
(c)
The
consideration received by the Trust for the issuance of the Securities
shall
constitute a contribution to the capital of the Trust and shall not constitute
a
loan to the Trust.
(d)
Upon
issuance of the Securities as provided in this Declaration, the Securities
so
issued shall be deemed to be validly issued, fully paid and, except as
provided
in Section 9.1(b) with respect to the Common Securities,
non-assessable.
(e)
Every
Person, by virtue of having become a Holder in accordance with the terms
of this
Declaration, shall be deemed to have expressly assented and agreed to
the terms
of, and shall be bound by, this Declaration and the Guarantee.
Section
6.2.
Paying
Agent, Transfer Agent and Registrar
.
The
Trust
shall maintain in Wilmington, Delaware, an office or agency where the
Capital
Securities may be presented for payment (“
Paying
Agent
”),
and
an office or agency where Securities may be presented for registration
of
transfer or exchange (the “
Transfer
Agent
”).
The
Trust shall keep or cause to be kept at such office or agency a register
for the
purpose of registering Securities, transfers and exchanges of Securities,
such
register to be held by a registrar (the “
Registrar
”).
The
Administrators may appoint the Paying Agent, the Registrar and the Transfer
Agent and may appoint one or more additional Paying Agents or one or
more
co-Registrars, or one or more co-Transfer Agents in such other locations
as it
shall determine. The term “
Paying
Agent
”
includes any additional paying agent, the term “
Registrar
”
includes any additional registrar or co-Registrar and the term “
Transfer
Agent
”
includes any additional transfer agent. The Administrators may change
any Paying
Agent, Transfer Agent or Registrar at any time without prior notice to
any
Holder. The Administrators shall notify the Institutional Trustee of
the name
and address of any Paying Agent, Transfer Agent and Registrar not a party
to
this Declaration. The Administrators hereby initially appoint the Institutional
Trustee to act as Paying Agent, Transfer Agent and Registrar for the
Capital
Securities and the Common Securities. The Institutional Trustee or any
of its
Affiliates in the United States may act as Paying Agent, Transfer Agent
or
Registrar.
Section
6.3.
Form
and Dating
.
The
Capital Securities and the Institutional Trustee’s certificate of authentication
thereon shall be substantially in the form of Exhibit A-1, and
the Common
Securities shall be substantially in the form of Exhibit A-2,
each of which
is hereby incorporated in and expressly made a part of this Declaration.
Certificates may be typed, printed, lithographed or engraved or may be
produced
in any other manner as is reasonably acceptable to the Administrators,
as
conclusively evidenced by their execution thereof. The Securities may
have
letters, numbers, notations or other marks of identification or designation
and
such legends or endorsements required by law, stock exchange rule, agreements
to
which the Trust is subject if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Sponsor). The Trust
at the
direction of the Sponsor shall furnish any such legend not contained
in
Exhibit A-1 to the Institutional Trustee in writing. Each Capital
Security
shall be dated on or before the date of its authentication. The terms
and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this
Declaration
and to the extent applicable, the Institutional Trustee, the Delaware
Trustee,
the Administrators and the Sponsor, by their execution and delivery of
this
Declaration, expressly agree to such terms and provisions and to be bound
thereby. Capital Securities will be issued only in blocks having a stated
liquidation amount of not less than $100,000.00 and any multiple of $1,000.00
in
excess thereof.
The
Capital Securities are being offered and sold by the Trust pursuant to
the
Placement Agreement in definitive, registered form without coupons and
with the
Restricted Securities Legend.
Section
6.4.
Mutilated,
Destroyed, Lost or Stolen Certificates.
If:
(a)
any
mutilated Certificates should be surrendered to the Registrar, or if
the
Registrar shall receive evidence to its satisfaction of the destruction,
loss or
theft of any Certificate; and
(b)
there
shall be delivered to the Registrar, the Administrators and the Institutional
Trustee such security or indemnity as may be required by them to keep
each of
them harmless;
then,
in
the absence of notice that such Certificate shall have been acquired
by a
protected purchaser, an Administrator on behalf of the Trust shall execute
(and
in the case of a Capital Security Certificate, the Institutional Trustee
shall
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section
6.4,
the Registrar or the Administrators may require the payment of a sum
sufficient
to cover any tax or other governmental charge that may be imposed in
connection
therewith. Any duplicate Certificate issued pursuant to this Section
shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen
or
destroyed Certificate shall be found at any time.
Section
6.5.
Temporary
Securities.
Until
definitive Securities are ready for delivery, the Administrators may
prepare
and, in the case of the Capital Securities, the Institutional Trustee
shall
authenticate, temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the
Administrators consider appropriate for temporary Securities. Without
unreasonable delay, the Administrators shall prepare and, in the case
of the
Capital Securities, the Institutional Trustee shall authenticate, definitive
Securities in exchange for temporary Securities.
Section
6.6.
Cancellation
.
The
Administrators at any time may deliver Securities to the Institutional
Trustee
for cancellation. The Registrar shall forward to the Institutional Trustee
any
Securities surrendered to it for registration of transfer, redemption
or
payment. The Institutional Trustee shall promptly cancel all Securities
surrendered for registration of transfer, payment, replacement or cancellation
and shall dispose of such canceled Securities as the Administrators direct.
The
Administrators may not issue new Securities to replace Securities that
have been
paid or that have been delivered to the Institutional Trustee for
cancellation.
Section
6.7.
Rights
of Holders; Waivers of Past Defaults.
(a)
The
legal
title to the Trust Property is vested exclusively in the Institutional
Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders
shall
not have any right or title therein other than the undivided beneficial
interest
in the assets of the Trust conferred by their Securities and they shall
have no
right to call for any partition or division of property, profits or rights
of
the Trust except as described below. The Securities shall be personal
property
giving only the rights specifically set forth therein and in this Declaration.
The Securities shall have no preemptive or similar rights.
(b)
For
so
long as any Capital Securities remain outstanding, if upon an Indenture
Event of
Default, the Debenture Trustee fails or the holders of not less than
25% in
principal amount of the outstanding Debentures fail to declare the principal
of
all of the Debentures to be immediately due and payable, the Holders
of a
Majority in liquidation amount of the Capital Securities then outstanding
shall
have the right to make such declaration by a notice in writing to the
Institutional Trustee, the Sponsor and the Debenture Trustee.
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 provided in the Indenture, if the
Institutional Trustee, subject to the provisions hereof, fails to annul
any such
declaration and waive such default, the Holders of a Majority in liquidation
amount of the Capital Securities, by written notice to the Institutional
Trustee, the Sponsor and the Debenture Trustee, may rescind and annul
such
declaration and its consequences if:
(i)
the
Debenture Issuer 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 on all of the Debentures,
(C)
the
principal of (and premium, if any, on) any Debentures that have become
due
otherwise than by such declaration of acceleration and interest and Additional
Interest 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 Institutional 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 5.7 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 or any Indenture Event of Default, except
a default
or Indenture Event of Default in the payment of principal or interest
on the
Debentures (unless such default or Indenture Event of 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 under the Indenture or an Indenture Event of 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 Institutional 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 Institutional 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 6.7.
(c)
E
xcept
as
otherwise provided in paragraphs (a) and (b) of this Section 6.7,
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 Declaration, but no such waiver shall extend to any subsequent
or other
default or Event of Default or impair any right consequent thereon.
ARTICLE
VII
DISSOLUTION
AND TERMINATION OF TRUST
Section
7.1.
Dissolution
and Termination of Trust.
(a)
The
Trust
shall dissolve on the first to occur of:
(i)
unless
earlier dissolved, on September 15, 2040, the expiration of the
term of the
Trust;
(ii)
upon
a
Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
(iii)
upon
the
filing of a certificate of dissolution or its equivalent with respect
to the
Sponsor (other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, this Declaration or the
Guarantee,
as the case may be) or upon the revocation of the charter of the Sponsor
and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iv)
upon
the
distribution of the Debentures to the Holders of the Securities, upon
exercise
of the right of the Holder of all of the outstanding Common Securities
to
dissolve the Trust as provided in Annex I hereto;
(v)
upon
the
entry of a decree of judicial dissolution of the Holder of the Common
Securities, the Sponsor, the Trust or the Debenture Issuer;
(vi)
when
all
of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders
in
accordance with the terms of the Securities; or
(vii)
before
the issuance of any Securities, with the consent of all of the Trustees
and the
Sponsor.
(b)
As
soon
as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust
as
required by applicable law, including of the Statutory Trust Act, and
subject to
the terms set forth in Annex I, the Institutional Trustee shall
terminate
the Trust by filing a certificate of cancellation with the Secretary
of State of
the State of Delaware.
(c)
The
provisions of Section 2.9 and Article IX shall survive
the termination
of the Trust.
ARTICLE
VIII
TRANSFER
OF INTERESTS
Section
8.1.
General.
(a)
Subject
to Section 8.1(c), where Capital Securities are presented to the Registrar
or a
co-registrar with a request to register a transfer or to exchange them
for an
equal number of Capital Securities represented by different certificates,
the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfer and
exchanges, the Trust shall issue and the Institutional Trustee shall
authenticate Capital Securities at the Registrar’s request.
(b)
Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and for so long
as the
Securities remain outstanding, and to the fullest extent permitted by
applicable
law, the Sponsor shall maintain 100% ownership of the Common Securities;
provided
,
however
,
that
any permitted successor of the Sponsor, in its capacity as Debenture
Issuer,
under the Indenture that is a U.S. Person may succeed to the Sponsor’s ownership
of the Common Securities.
(c)
Capital
Securities may only be transferred, in whole or in part, in accordance
with the
terms and conditions set forth in this Declaration and in the terms of
the
Securities. To the fullest extent permitted by applicable law, any transfer
or
purported transfer of any Security not made in accordance with this Declaration
shall be null and void and will be deemed to be of no legal effect whatsoever
and any such transferee shall be deemed not to be the holder of such
Capital
Securities for any purpose, including but not limited to the receipt
of
Distributions on such Capital Securities, and such transferee shall be
deemed to
have no interest whatsoever in such Capital Securities.
(d)
The
Registrar shall provide for the registration of Securities and of transfers
of
Securities, which will be effected without charge but only upon payment
(with
such indemnity as the Registrar may require) in respect of any tax or
other
governmental charges that may be imposed in relation to it. Upon surrender
for
registration of transfer of any Securities, the Registrar shall cause
one or
more new Securities of the same tenor to be issued in the name of the
designated
transferee or transferees. Every Security surrendered for registration
of
transfer shall be accompanied by a written instrument of transfer in
form
satisfactory to the Registrar duly executed by the Holder or such Holder’s
attorney duly authorized in writing. Each Security surrendered for registration
of transfer shall be canceled by the Institutional Trustee pursuant to
Section
6.6. A transferee of a Security shall be entitled to the rights and subject
to
the obligations of a Holder hereunder upon the receipt by such transferee
of a
Security. By acceptance of a Security, each transferee shall be deemed
to have
agreed to be bound by this Declaration.
(e)
The
Trust
shall not be required (i) to issue, register the transfer of,
or exchange
any Securities during a period beginning at the opening of business
fifteen days before the day of any selection of Securities for
redemption
and ending at the close of business on the earliest date on which the
relevant
notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or
exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section
8.2.
Transfer
Procedures and Restrictions.
(a)
The
Capital Securities shall bear the Restricted Securities Legend, which
shall not
be removed unless there is delivered to the Trust such satisfactory evidence,
which may include an opinion of counsel satisfactory to the Institutional
Trustee, as may be reasonably required by the Trust, that neither the
legend nor
the restrictions on transfer set forth therein are required to ensure
that
transfers thereof comply with the provisions of the Securities Act. Upon
provision of such satisfactory evidence, the Institutional Trustee, at
the
written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the legend.
(b)
Except
as
permitted by Section 8.2(a), each Capital Security shall bear a legend
(the
“
Restricted
Securities Legend
”)
in
substantially the following form and a Capital Security shall not be
transferred
except in compliance with such legend, unless otherwise determined by
the
Sponsor, upon the advice of counsel expert in securities law, in accordance
with
applicable law:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW.
NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY
(A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG
AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE
WITH
RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE)
OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL
SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S AND THE TRUST’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY
OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH
MAY BE
OBTAINED FROM THE SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING
THIS
SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY
IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR
ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING
THEREOF
THAT
EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3)
OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE,
A TRUSTEE
OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN,
OR ANY
OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN
OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND
MULTIPLES
OF $1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES
IN A BLOCK
HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED
TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
(c)
To
permit
registrations of transfers and exchanges, the Trust shall execute and
the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s
request.
(d)
Registrations
of transfers or exchanges will be effected without charge, but only upon
payment
(with such indemnity as the Registrar or the Sponsor may require) in
respect of
any tax or other governmental charge that may be imposed in relation
to
it.
(e)
All
Capital Securities issued upon any registration of transfer or exchange
pursuant
to the terms of this Declaration shall evidence the same security and
shall be
entitled to the same benefits under this Declaration as the Capital Securities
surrendered upon such registration of transfer or exchange.
Section
8.3.
Deemed
Security Holders.
The
Trust, the Administrators, the Trustees, the Paying Agent, the Transfer
Agent or
the Registrar may treat the Person in whose name any Certificate shall
be
registered on the books and records of the Trust as the sole holder of
such
Certificate and of the Securities represented by such Certificate for
purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim
to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or
the
Registrar shall have actual or other notice thereof.
ARTICLE
IX
LIMITATION
OF LIABILITY OF
HOLDERS
OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
Section
9.1.
Liability.
(a)
Except
as
expressly set forth in this Declaration, the Guarantee and the terms
of the
Securities, the Sponsor shall not be:
(i)
personally
liable for the return of any portion of the capital contributions (or
any return
thereon) of the Holders of the Securities which shall be made solely
from assets
of the Trust; or
(ii)
required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
(b)
The
Holder of the Common Securities shall be liable for all of the debts
and
obligations of the Trust (other than with respect to the Securities)
to the
extent not satisfied out of the Trust’s assets.
(c)
Pursuant
to the Statutory Trust Act, the Holders of the Capital Securities shall
be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation
Law
of the State of Delaware.
Section
9.2.
Exculpation.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages
or
otherwise to the Trust or any Covered Person for any loss, damage or
claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such
Indemnified Person reasonably believed to be within the scope of the
authority
conferred on such Indemnified Person by this Declaration or by law, except
that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person’s negligence or willful misconduct
with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith
upon the
records of the Trust and upon such information, opinions, reports or
statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence and, if selected by such Indemnified Person, has been selected
by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value
and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent
to the existence and amount of assets from which Distributions to Holders
of
Securities might properly be paid.
Section
9.3.
Fiduciary
Duty.
(a)
To
the
extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to
any other
Covered Person, an Indemnified Person acting under this Declaration shall
not be
liable to the Trust or to any other Covered Person for its good faith
reliance
on the provisions of this Declaration. The provisions of this Declaration,
to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity, are agreed by the parties
hereto
to replace such other duties and liabilities of the Indemnified
Person.
(b)
Whenever
in this Declaration an Indemnified Person is permitted or required to
make a
decision:
(i)
in
its
“discretion” or under a grant of similar authority, the Indemnified Person shall
be entitled to consider such interests and factors as it desires, including
its
own interests, and shall have no duty or obligation to give any consideration
to
any interest of or factors affecting the Trust or any other Person;
or
(ii)
in
its
“good faith” or under another express standard, the Indemnified Person shall act
under such express standard and shall not be subject to any other or
different
standard imposed by this Declaration or by applicable law.
Section
9.4.
Indemnification.
(a)
The
Sponsor shall indemnify, to the full extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil,
criminal, administrative or investigative (other than an action by or
in the
right of the Trust) arising out of or in connection with the acceptance
or
administration of this Declaration by reason of the fact that he is or
was an
Indemnified Person against expenses (including reasonable attorneys’ fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if
he acted in good faith and in a manner he reasonably believed to be in
or not
opposed to the best interests of the Trust, and, with respect to any
criminal
action or proceeding, had no reasonable cause to believe his conduct
was
unlawful. The termination of any action, suit or proceeding by judgment,
order,
settlement, conviction, or upon a plea of
nolo
contendere
or its
equivalent, shall not, of itself, create a presumption that the Indemnified
Person did not act in good faith and in a manner which he reasonably
believed to
be in or not opposed to the best interests of the Trust, and, with respect
to
any criminal action or proceeding, had reasonable cause to believe that
his
conduct was unlawful.
(b)
The
Sponsor shall indemnify, to the full extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the Trust
to procure a judgment in its favor arising out of or in connection with
the
acceptance or administration of this Declaration by reason of the fact
that he
is or was an Indemnified Person against expenses (including reasonable
attorneys’ fees and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the
best interests of the Trust;
provided
,
however
,
that no
such indemnification shall be made in respect of any claim, issue or
matter as
to which such Indemnified Person shall have been adjudged to be liable
to the
Trust unless and only to the extent that the court in which such action
or suit
was brought shall determine upon application that, despite the adjudication
of
liability but in view of all the circumstances of the case, such person
is
fairly and reasonably entitled to indemnity for such expenses which such
court
shall deem proper.
(c)
To
the
extent that an Indemnified Person shall be successful on the merits or
otherwise
(including dismissal of an action without prejudice or the settlement
of an
action without admission of liability) in defense of any action, suit
or
proceeding referred to in paragraphs (a) and (b) of this Section
9.4, or in
defense of any claim, issue or matter therein, he shall be indemnified,
to the
full extent permitted by law, against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by him in connection
therewith.
(d)
Any
indemnification of an Administrator under paragraphs (a) and (b)
of this
Section 9.4 (unless ordered by a court) shall be made by the Sponsor
only as
authorized in the specific case upon a determination that indemnification
of the
Indemnified Person is proper in the circumstances because he has met
the
applicable standard of conduct set forth in paragraphs (a) and
(b). Such
determination shall be made (i) by the Administrators by a majority
vote of
a Quorum consisting of such Administrators who were not parties to such
action,
suit or proceeding, (ii) if such a Quorum is not obtainable, or,
even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (iii) by the
Common
Security Holder of the Trust.
(e)
To
the
fullest extent permitted by law, expenses (including reasonable attorneys’ fees
and expenses) incurred by an Indemnified Person in defending a civil,
criminal,
administrative or
investigative
action, suit or proceeding referred to in paragraphs (a) and
(b) of this
Section 9.4 shall be paid by the Sponsor in advance of the final disposition
of
such action, suit or proceeding upon receipt of an undertaking by or
on behalf
of such Indemnified Person to repay such amount if it shall ultimately
be
determined that he is not entitled to be indemnified by the Sponsor
as
authorized in this Section 9.4. Notwithstanding the foregoing, no advance
shall
be made by the Sponsor if a determination is reasonably and promptly
made
(i) by the Administrators by a majority vote of a Quorum of
disinterested
Administrators, (ii) if such a Quorum is not obtainable, or,
even if
obtainable, if a quorum of disinterested Administrators so directs,
by
independent legal counsel in a written opinion or (iii) by the
Common
Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Indemnified Person acted in bad faith or
in a manner
that such Indemnified Person did not believe to be in the best interests
of the
Trust, or, with respect to any criminal proceeding, that such Indemnified
Person
believed or had reasonable cause to believe his conduct was unlawful.
In no
event shall any advance be made in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably
determine
that such Indemnified Person deliberately breached his duty to the
Trust or its
Common or Capital Security Holders.
(f)
The
Trustees, at the sole cost and expense of the Sponsor, retain the right
to
representation by counsel of their own choosing in any action, suit or
any other
proceeding for which they are indemnified under paragraphs (a)
and (b) of
this Section 9.4, without affecting their right to indemnification hereunder
or
waiving any rights afforded to it under this Declaration or applicable
law.
(g)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other paragraphs of this Section 9.4 shall not be deemed exclusive
of any
other rights to which those seeking indemnification and advancement of
expenses
may be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or
otherwise,
both as to action in his official capacity and as to action in another
capacity
while holding such office. All rights to indemnification under this
Section 9.4 shall be deemed to be provided by a contract between
the
Sponsor and each Indemnified Person who serves in such capacity at any
time
while this Section 9.4 is in effect. Any repeal or modification of this
Section
9.4 shall not affect any rights or obligations then existing.
(h)
The
Sponsor or the Trust may purchase and maintain insurance on behalf of
any Person
who is or was an Indemnified Person against any liability asserted against
him
and incurred by him in any such capacity, or arising out of his status
as such,
whether or not the Sponsor would have the power to indemnify him against
such
liability under the provisions of this Section 9.4.
(i)
For
purposes of this Section 9.4, references to “the Trust” shall include, in
addition to the resulting or surviving entity, any constituent entity
(including
any constituent of a constituent) absorbed in a consolidation or merger,
so that
any Person who is or was a director, trustee, officer or employee of
such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another
entity,
shall stand in the same position under the provisions of this Section
9.4 with
respect to the resulting or surviving entity as he would have with respect
to
such constituent entity if its separate existence had continued.
(j)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Section 9.4 shall, unless otherwise provided when authorized or
ratified,
(i) continue as to a Person who has ceased to be an Indemnified
Person and
shall inure to the benefit of the heirs, executors and administrators
of such a
Person; and (ii) survive the termination or expiration of this
Declaration
or the earlier removal or resignation of an Indemnified Person.
Section
9.5.
Outside
Businesses.
Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional
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 Trust, and the Trust and the Holders of Securities shall have
no rights
by virtue of this Declaration in and to such independent ventures or
the income
or profits derived therefrom, and the pursuit of any such venture, even
if
competitive with the business of the Trust, shall not be deemed wrongful
or
improper. None of any Covered Person, the Sponsor, the Delaware Trustee
or the
Institutional Trustee shall be obligated to present any particular investment
or
other opportunity to the Trust even if such opportunity is of a character
that,
if presented to the Trust, could be taken by the Trust, and any Covered
Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall
have the
right to take for its own account (individually or as a partner or fiduciary)
or
to recommend to others any such particular investment or other opportunity.
Any
Covered Person, the Delaware Trustee and the Institutional Trustee may
engage or
be interested in any financial or other transaction with the Sponsor
or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for, or
act on any committee or body of holders of, securities or other obligations
of
the Sponsor or its Affiliates.
Section
9.6.
Compensation;
Fee
.
The
Sponsor agrees:
(a)
to
pay to
the Trustees from time to time such compensation for all services rendered
by
them hereunder as the parties shall agree 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); and
(b)
except
as
otherwise expressly provided herein, to reimburse the Trustees upon request
for
all reasonable expenses, disbursements and advances incurred or made
by the
Trustees in accordance with any provision of this Declaration (including
the
reasonable compensation and the expenses and disbursements of their respective
agents and counsel), except any such expense, disbursement or advance
as may be
attributable to its negligence, bad faith or willful misconduct.
For
purposes of clarification, this Section 9.6 does not contemplate
the
payment by the Sponsor of acceptance or annual administration fees owing
to the
Trustees under this Declaration or the fees and expenses of the Trustees’
counsel in connection with the closing of the transactions contemplated
by this
Declaration.
The
provisions of this Section 9.6 shall survive the dissolution of the Trust
and
the termination of this Declaration and the removal or resignation of
any
Trustee.
No
Trustee may claim any lien or charge on any property of the Trust as
a result of
any amount due pursuant to this Section 9.6.
ARTICLE
X
ACCOUNTING
Section
10.1.
Fiscal
Year
.
The
fiscal year (“
Fiscal
Year
”)
of the
Trust shall be the calendar year, or such other year as is required by
the
Code.
Section
10.2.
Certain
Accounting Matters.
(a)
At
all
times during the existence of the Trust, the Administrators shall keep,
or cause
to be kept at the principal office of the Trust in the United States,
as defined
for purposes of Treasury Regulations section 301.7701-7, full books of
account,
records and supporting documents, which shall reflect in reasonable detail
each
transaction of the Trust. The books of account shall be maintained, at
the
Sponsor’s
expense, in accordance with generally accepted accounting principles,
consistently applied. The books of account and the records of the Trust
shall be
examined by and reported upon (either separately or as part of the
Sponsor’s
regularly prepared consolidated financial report) as of the end of
each Fiscal
Year of the Trust by a firm of independent certified public accountants
selected
by the Administrators.
(b)
The
Administrators shall cause to be duly prepared and delivered to each
of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required
by
the Code and the Treasury Regulations. Notwithstanding any right under
the Code
to deliver any such statement at a later date, the Administrators shall
endeavor
to deliver all such statements within 30 days after the end of
each Fiscal
Year of the Trust.
(c)
The
Administrators, at the Sponsor’s expense, shall cause to be duly prepared at the
principal office of the Sponsor in the United States, as ‘United States’ is
defined in Section 7701(a)(9) of the Code (or at the principal
office of
the Trust if the Sponsor has no such principal office in the United States),
and
filed an annual United States federal income tax return on a Form 1041
or such
other form required by United States federal income tax law, and any
other
annual income tax returns required to be filed by the Administrators
on behalf
of the Trust with any state or local taxing authority.
Section
10.3.
Banking.
The
Trust
shall maintain in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, one or more bank accounts in the name
and for
the sole benefit of the Trust;
provided
,
however
,
that
all payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds
of the
Trust shall be deposited in the Property Account. The sole signatories
for such
accounts (including the Property Account) shall be designated by the
Institutional Trustee.
Section
10.4.
Withholding.
The
Institutional Trustee or any Paying Agent and the Administrators shall
comply
with all withholding requirements under United States federal, state
and local
law. The Institutional Trustee or any Paying Agent shall request, and
each
Holder shall provide to the Institutional Trustee or any Paying Agent,
such
forms or certificates as are necessary to establish an exemption from
withholding with respect to the Holder, and any representations and forms
as
shall reasonably be requested by the Institutional Trustee or any Paying
Agent
to assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder
to
applicable jurisdictions. To the extent that the Institutional Trustee
or any
Paying Agent is required to withhold and pay over any amounts to any
authority
with respect to distributions or allocations to any Holder, the amount
withheld
shall be deemed to be a Distribution in the amount of the withholding
to the
Holder. In the event of any claimed overwithholding, Holders shall be
limited to
an action against the applicable jurisdiction. If the amount required
to be
withheld was not withheld from actual Distributions made, the Institutional
Trustee or any Paying Agent may reduce subsequent Distributions by the
amount of
such withholding.
ARTICLE
XI
AMENDMENTS
AND MEETINGS
Section
11.1.
Amendments.
(a)
Except
as
otherwise provided in this Declaration or by any applicable terms of
the
Securities, this Declaration may only be amended by a written instrument
approved and executed (i) by
the
Institutional Trustee, or (ii) if the amendment affects the
rights, powers,
duties, obligations or immunities of the Delaware Trustee, by the Delaware
Trustee.
(b)
Notwithstanding
any other provision of this Article XI, an amendment may be made,
and any
such purported amendment shall be valid and effective only if:
(i)
the
Institutional Trustee shall have first received
(A)
an
Officers’ Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including
the
terms of the Securities); and
(B)
an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(ii)
the
result of such amendment would not be to
(A)
cause
the
Trust to cease to be classified for purposes of United States federal
income
taxation as a grantor trust; or
(B)
cause
the
Trust to be deemed to be an Investment Company required to be registered
under
the Investment Company Act.
(c)
Except
as
provided in Section 11.1(d), (e) or (h), no amendment shall be made,
and any
such purported amendment shall be void and ineffective, unless the Holders
of a
Majority in liquidation amount of the Capital Securities shall have consented
to
such amendment.
(d)
In
addition to and notwithstanding any other provision in this Declaration,
without
the consent of each affected Holder, this Declaration may not be amended
to
(i) change the amount or timing of any Distribution on the Securities
or
otherwise adversely affect the amount of any Distribution required to
be made in
respect of the Securities as of a specified date or change any conversion
or
exchange provisions or (ii) restrict the right of a Holder to
institute
suit for the enforcement of any such payment on or after such date.
(e)
Sections 9.1(b)
and 9.1(c) and this Section 11.1 shall not be amended without the consent
of all
of the Holders of the Securities.
(f)
Article III
shall not be amended without the consent of the Holders of a Majority
in
liquidation amount of the Common Securities.
(g)
The
rights of the Holders of the Capital Securities under Article IV
to appoint
and remove Trustees shall not be amended without the consent of the Holders
of a
Majority in liquidation amount of the Capital Securities.
(h)
This
Declaration may be amended by the Institutional Trustee and the Holders
of a
Majority in liquidation amount of the Common Securities without the consent
of
the Holders of the Capital Securities to:
(i)
cure
any
ambiguity;
(ii)
correct
or supplement any provision in this Declaration that may be defective
or
inconsistent with any other provision of this Declaration;
(iii)
add
to
the covenants, restrictions or obligations of the Sponsor; or
(iv)
modify,
eliminate or add to any provision of this Declaration to such extent
as may be
necessary to ensure that the Trust will be classified for United States
federal
income tax purposes at all times as a grantor trust and will not be required
to
register as an Investment Company (including without limitation to conform
to
any change in Rule 3a-5, Rule 3a-7 or any other applicable
rule under
the Investment Company Act or written change in interpretation or application
thereof by any legislative body, court, government agency or regulatory
authority) which amendment does not have a material adverse effect on
the
rights, preferences or privileges of the Holders of Securities;
provided
,
however
,
that no
such modification, elimination or addition referred to in clauses (i),
(ii), (iii) or (iv) shall adversely affect in any material respect the
powers,
preferences or special rights of Holders of Capital Securities.
Section
11.2.
Meetings
of the Holders of Securities; Action by Written Consent.
(a)
Meetings
of the Holders of any class of Securities may be called at any time by
the
Administrators (or as provided in the terms of the Securities) to consider
and
act on any matter on which Holders of such class of Securities are entitled
to
act under the terms of this Declaration or the terms of the Securities.
The
Administrators shall call a meeting of the Holders of such class if directed
to
do so by the Holders of at least 10% in liquidation amount of such class
of
Securities. Such direction shall be given by delivering to the Administrators
one or more calls in a writing stating that the signing Holders of the
Securities wish to call a meeting and indicating the general or specific
purpose
for which the meeting is to be called. Any Holders of the Securities
calling a
meeting shall specify in writing the Certificates held by the Holders
of the
Securities exercising the right to call a meeting and only those Securities
represented by such Certificates shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b)
Except
to
the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
(i)
notice
of
any such meeting shall be given to all the Holders of the Securities
having a
right to vote thereat at least 7 days and not more than 60 days
before
the date of such meeting. Whenever a vote, consent or approval of the
Holders of
the Securities is permitted or required under this Declaration, such
vote,
consent or approval may be given at a meeting of the Holders of the Securities.
Any action that may be taken at a meeting of the Holders of the Securities
may
be taken without a meeting if a consent in writing setting forth the
action so
taken is signed by the Holders of the Securities owning not less than
the
minimum amount of Securities in liquidation amount that would be necessary
to
authorize or take such action at a meeting at which all Holders of the
Securities having a right to vote thereon were present and voting. Prompt
notice
of the taking of action without a meeting shall be given to the Holders
of the
Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the Holders
of
the Securities for the purpose of taking any action without a meeting
shall be
returned to the Trust within the time specified by the
Administrators;
(ii)
each
Holder of a Security may authorize any Person to act for it by proxy
on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting.
No proxy
shall be valid after the expiration of 11 months from the date
thereof
unless otherwise provided in the proxy. Every proxy shall be revocable
at the
pleasure of the Holder of the Securities executing it. Except as otherwise
provided
herein, all matters relating to the giving, voting or validity of proxies
shall
be governed by the General Corporation Law of the State of Delaware relating
to
proxies, and judicial interpretations thereunder, as if the Trust were
a
Delaware corporation and the Holders of the Securities were stockholders
of a
Delaware corporation; each meeting of the Holders of the Securities shall
be
conducted by the Administrators or by such other Person that the Administrators
may designate; and
(iii)
unless
the Statutory Trust Act, this Declaration, or the terms of the Securities
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which
any
matter is to be voted on by any Holders of the Securities, waiver of
any such
notice, action by consent without a meeting, the establishment of a record
date,
quorum requirements, voting in person or by proxy or any other matter
with
respect to the exercise of any such right to vote;
provided
,
however
,
that
each meeting shall be conducted in the United States (as that term is
defined in
Treasury Regulations section 301.7701-7).
ARTICLE
XII
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE
Section
12.1.
Representations
and Warranties of Institutional Trustee.
The
initial Institutional Trustee represents and warrants to the Trust and
to the
Sponsor at the date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at the time
of the
Successor Institutional Trustee’s acceptance of its appointment as Institutional
Trustee, that:
(a)
the
Institutional Trustee is a Delaware banking corporation with trust powers,
duly
organized and validly existing under the laws of the State of Delaware
with
trust power and authority to execute and deliver, and to carry out and
perform
its obligations under the terms of, this Declaration;
(b)
the
execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary corporate action
on the
part of the Institutional Trustee. This Declaration has been duly executed
and
delivered by the Institutional Trustee, and it constitutes a legal, valid
and
binding obligation of the Institutional Trustee, enforceable against
it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors’ rights
generally and to general principles of equity (regardless of whether
considered
in a proceeding in equity or at law);
(c)
the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter
or by-laws
of the Institutional Trustee; and
(d)
no
consent, approval or authorization of, or registration with or notice
to, any
state or federal banking authority is required for the execution, delivery
or
performance by the Institutional Trustee of this Declaration.
Section
12.2.
Representations
of the Delaware Trustee
.
The
Trustee that acts as initial Delaware Trustee represents and warrants
to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor
at the
time of the Successor Delaware Trustee’s acceptance of its appointment as
Delaware Trustee that:
(a)
if
it is
not a natural person, the Delaware Trustee is duly organized, validly
existing
and in good standing under the laws of the State of Delaware;
(b)
if
it is
not a natural person, the execution, delivery and performance by the
Delaware
Trustee of this Declaration has been duly authorized by all necessary
corporate
action on the part of the Delaware Trustee. This Declaration has been
duly
executed and delivered by the Delaware Trustee, and under Delaware law
(excluding any securities laws) constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors’ rights generally and to
general principles of equity and the discretion of the court (regardless
of
whether considered in a proceeding in equity or at law);
(c)
if
it is
not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute
a
breach of the charter or by-laws of the Delaware Trustee;
(d)
it
has
trust power and authority to execute and deliver, and to carry out and
perform
its obligations under the terms of, this Declaration;
(e)
no
consent, approval or authorization of, or registration with or notice
to, any
state or federal banking authority governing the trust powers of the
Delaware
Trustee is required for the execution, delivery or performance by the
Delaware
Trustee of this Declaration; and
(f)
the
Delaware Trustee is a natural person who is a resident of the State of
Delaware
or, if not a natural person, it is an entity which has its principal
place of
business in the State of Delaware and, in either case, a Person that
satisfies
for the Trust the requirements of Section 3807 of the Statutory Trust
Act.
ARTICLE
XIII
MISCELLANEOUS
Section
13.1.
Notices.
All
notices provided for in this Declaration shall be in writing, duly signed
by the
party giving such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class mail)
or mailed
by first class mail, as follows:
(a)
if
given
to the Trust, in care of the Administrators at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to
the
Holders of the Securities):
WT Capital
Trust I
c/o
Washington Trust Bancorp, Inc.
23
Broad
Street
Westerly,
Rhode Island 02891
Attention:
David V. Devault
Telecopy:
401-348-1565
(b)
if
given
to the Delaware Trustee, at the Delaware Trustee’s mailing address set forth
below (or such other address as the Delaware Trustee may give notice
of to the
Holders of the Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention:
Corporate Trust Administration
Telecopy:
302-636-4140
(c)
if
given
to the Institutional Trustee, at the Institutional Trustee’s mailing address set
forth below (or such other address as the Institutional Trustee may give
notice
of to the Holders of the Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention:
Corporate Trust Administration
Telecopy:
302-636-4140
(d)
if
given
to the Holder of the Common Securities, at the mailing address of the
Sponsor
set forth below (or such other address as the Holder of the Common Securities
may give notice of to the Trust):
Washington
Trust Bancorp, Inc.
23
Broad
Street
Westerly,
Rhode Island 02891
Attention:
David V. Devault
Telecopy:
401-348-1565
(e)
if
given
to any other Holder, at the address set forth on the books and records
of the
Trust.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid
except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice
or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
Section
13.2.
Governing
Law.
This
Declaration and the rights of the parties hereunder shall be governed
by and
interpreted in accordance with the law of the State of Delaware and all
rights
and remedies shall be governed by such laws without regard to the principles
of
conflict of laws of the State of Delaware or any other jurisdiction that
would
call for the application of the law of any jurisdiction other than the
State of
Delaware;
provided
,
however
,
that
there shall not be applicable to the Trust, the Trustees or this Declaration
any
provision of the laws (statutory or common) of the State of Delaware
pertaining
to trusts that relate to or regulate, in a manner inconsistent with the
terms
hereof (a) the filing with any court or governmental body or agency
of
trustee accounts or schedules of trustee fees and charges, (b) affirmative
requirements to post bonds for trustees, officers, agents or employees
of a
trust, (c) the necessity for obtaining court or other governmental
approval
concerning the acquisition, holding or disposition of real or personal
property,
(d) fees or other sums payable to trustees, officers, agents or
employees
of a trust, (e) the allocation of receipts and expenditures to
income or
principal, or (f) restrictions or limitations on the permissible
nature,
amount or concentration of trust investments or requirements relating
to the
titling, storage or other manner of holding or investing trust
assets.
Section
13.3.
Intention
of the Parties.
It
is the
intention of the parties hereto that the Trust be classified for United
States
federal income tax purposes as a grantor trust. The provisions of this
Declaration shall be interpreted to further this intention of the
parties.
Section
13.4.
Headings.
Headings
contained in this Declaration are inserted for convenience of reference
only and
do not affect the interpretation of this Declaration or any provision
hereof.
Section
13.5.
Successors
and Assigns.
Whenever
in this Declaration any of the parties hereto is named or referred to,
the
successors and assigns of such party shall be deemed to be included,
and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and
assigns,
whether or not so expressed.
Section
13.6.
Partial
Enforceability.
If
any
provision of this Declaration, or the application of such provision to
any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
Section
13.7.
Counterparts.
This
Declaration may contain more than one counterpart of the signature page
and this
Declaration may be executed by the affixing of the signature of each
of the
Trustees and Administrators to any 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.
Signatures
appear on the following page
IN
WITNESS WHEREOF, the undersigned have caused these presents to be executed
as of
the day and year first above written.
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee
By:
/s/ Christopher J.
Monigle
Name:
Christopher J. Monigle
Title:
Assistant Vice President
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee
By:
/s/ Christopher J.
Monigle
Name:
Christopher J. Monigle
Title:
Assistant Vice President
WASHINGTON
TRUST BANCORP, INC, as sponsor,
By:
/s/ John C.
Warren
Name:
John C. Warren
Title:
Chairman and CEO
ADMINISTRATORS
OF WT CAPITAL TRUST I,
By:
/s/ John C.
Warren
Administrator
By:
/s/ John
F. Treanor
Administrator
By:
/s/ David V.
Devault
Administrator
ANNEX
I
TERMS
OF
SECURITIES
Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust, dated
as of
August 29, 2005 (as amended from time to time, the “Declaration”), the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities and the Common Securities are set
out below
(each capitalized term used but not defined herein has the meaning set
forth in
the Declaration):
1.
Designation
and Number
.
(a)
8,000
Fixed/Floating Rate Capital Securities of WT Capital Trust I
(the
“Trust”), with an aggregate stated liquidation amount with respect to the assets
of the Trust of eight million dollars ($8,000,000.00) and a stated liquidation
amount with respect to the assets of the Trust of $1,000.00 per Capital
Security, are hereby designated for the purposes of identification only
as the
“
Capital
Securities
”.
The
Capital Security Certificates evidencing the Capital Securities shall be
substantially in the form of Exhibit A-1 to the Declaration, with
such
changes and additions thereto or deletions therefrom as may be required
by
ordinary usage, custom or practice.
(b)
248
Fixed/Floating Rate Common Securities of the Trust (the “
Common
Securities
”)
will
be evidenced by Common Security Certificates substantially in the form
of
Exhibit A-2 to the Declaration, with such changes and additions
thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice.
2.
Distributions
.
(a)
Distributions
will be payable on each Security for the Distribution Period beginning
on (and
including) the date of original issuance and ending on (but excluding)
the
Distribution Payment Date in September 2010 at a rate per annum of 5.965%
and
shall bear interest for each successive Distribution Period beginning on
(and
including) the Distribution Payment Date in September 2010, and each succeeding
Distribution Payment Date, and ending on (but excluding) the next succeeding
Distribution Payment Date at a rate per annum equal to the 3-Month LIBOR,
determined as described below, plus 1.45% (the “
Coupon
Rate
”),
applied to the stated liquidation amount thereof, such rate being the rate
of
interest payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears will bear interest thereon compounded quarterly
at the
applicable Distribution Rate (to the extent permitted by law). Distributions,
as
used herein, include cash distributions and any such compounded distributions
unless otherwise noted. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional
Trustee
and to the extent the Institutional Trustee has funds available therefor.
The
amount of the Distribution payable (i) for any Distribution Period
commencing on or after the date of original issuance but before the Distribution
Payment Date in September 2010 will be computed on the basis of a 360-day
year
of twelve 30-day months, and (ii) for the Distribution Period commencing
on
the Distribution Payment Date in September 2010 and each succeeding Distribution
Period will be calculated by applying the Distribution Rate to the stated
liquidation amount outstanding at the commencement of the Distribution
Period on
the basis of the actual number of days in the Distribution Period concerned
divided by 360. All percentages resulting from any calculations on the
Capital
Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655),
and all dollar amounts used in or resulting from such calculation will
be
rounded to the nearest cent (with one-half cent being rounded
upward)).
(b)
Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment
periods as described herein, quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year,
or if such
day is not a Business Day, then the next succeeding Business Day (each
a
“
Distribution
Payment Date
”),
commencing on the Distribution Payment Date in December 2005 when, as and
if
available for payment. The Debenture Issuer has the right under the Indenture
to
defer payments of interest on the Debentures, so long as no Acceleration
Event
of Default has occurred and is continuing, by deferring the payment of
interest
on the Debentures for up to 20 consecutive quarterly periods (each an
“
Extension
Period
”)
at any
time and from time to time, subject to the conditions described below,
during
which Extension Period no interest shall be due and payable. During any
Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate equal to
the
Distribution Rate in effect for each such Extension Period, compounded
quarterly
from the date such interest would have been payable were it not for the
Extension Period, to the extent permitted by law (such interest referred
to
herein as “
Additional
Interest
”).
No
Extension Period may end on a date other than a Distribution Payment Date.
At
the end of any such Extension Period, the Debenture Issuer shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date and
provided
further
,
however
,
that
during any such Extension Period, the Debenture Issuer and its Affiliates
shall
not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
the
Debenture Issuer’s or its Affiliates’ capital stock (other than payments of
dividends or distributions to the Debenture Issuer) or make any guarantee
payments with respect to the foregoing, or (ii) make any payment
of
principal of or interest or premium, if any, on or repay, repurchase or
redeem
any debt securities of the Debenture Issuer or any Affiliate that rank
pari passu
in all
respects with or junior in interest to the Debentures (other than, with
respect
to clauses (i) and (ii) above, (a) repurchases, redemptions
or other
acquisitions of shares of capital stock of the Debenture Issuer in connection
with any employment contract, benefit plan or other similar arrangement
with or
for the benefit of one or more employees, officers, directors or consultants,
in
connection with a dividend reinvestment or stockholder stock purchase plan
or in
connection with the issuance of capital stock of the Debenture Issuer (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of any exchange or conversion
of any
class or series of the Debenture Issuer’s capital stock (or any capital stock of
a subsidiary of the Debenture Issuer) for any class or series of the Debenture
Issuer’s capital stock or of any class or series of the Debenture Issuer’s
indebtedness for any class or series of the Debenture Issuer’s capital stock,
(c) the purchase of fractional interests in shares of the Debenture
Issuer’s capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto, (e) any
dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks
pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares
issued
in connection therewith, or (f) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the Debenture
Issuer may further extend such period, provided that such period together
with
all such previous and further consecutive extensions thereof shall not
exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon
the
termination of any Extension Period and upon the payment of all accrued
and
unpaid interest and Additional Interest, the Debenture Issuer may commence
a new
Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period,
except
at the end thereof, but each installment of interest that would otherwise
have
been due and payable during such Extension Period shall bear Additional
Interest. During any Extension Period, Distributions on the Securities
shall be
deferred for a period equal to the Extension Period. If Distributions are
deferred, the Distributions due shall be paid on the date that the
related
Extension Period terminates to Holders of the Securities as they appear
on the
books and records of the Trust on the record date immediately preceding
such
date. Distributions on the Securities must be paid on the dates payable
(after
giving effect to any Extension Period) to the extent that the Trust has
funds
available for the payment of such distributions in the Property Account
of the
Trust. The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer.
The
payment of Distributions out of moneys held by the Trust is guaranteed
by the
Guarantor pursuant to the Guarantee.
(c)
Distributions
on the Securities will be payable to the Holders thereof as they appear
on the
books and records of the Trust on the relevant record dates. The relevant
record
dates shall be fifteen days before the relevant Distribution Payment Date.
Distributions payable on any Securities that are not punctually paid on
any
Distribution Payment Date, as a result of the Debenture Issuer having failed
to
make a payment under the Debentures, as the case may be, when due (taking
into
account any Extension Period), will cease to be payable to the Person in
whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name
such
Securities are registered on the special record date or other specified
date
determined in accordance with the Indenture.
(d)
In
the
event that there is any money or other property held by or for the Trust
that is
not accounted for hereunder, such property shall be distributed Pro Rata
(as
defined herein) among the Holders of the Securities.
3.
Liquidation
Distribution Upon Dissolution
.
In the
event of the voluntary or involuntary liquidation, dissolution, winding-up
or
termination of the Trust (each a “
Liquidation
”)
other
than in connection with a redemption of the Debentures, the Holders of
the
Securities will be entitled to receive out of the assets of the Trust available
for distribution to Holders of the Securities, after satisfaction of liabilities
to creditors of the Trust (to the extent not satisfied by the Debenture
Issuer),
distributions equal to the aggregate of the stated liquidation amount of
$1,000.00 per Security plus accrued and unpaid Distributions thereon to
the date
of payment (such amount being the “
Liquidation
Distribution
”),
unless in connection with such Liquidation, the Debentures in an aggregate
stated principal amount equal to the aggregate stated liquidation amount
of such
Securities, with an interest rate equal to the Distribution Rate of, and
bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, and having the same record date as, such Securities,
after
paying or making reasonable provision to pay all claims and obligations
of the
Trust in accordance with the Statutory Trust Act, shall be distributed
on a Pro
Rata basis to the Holders of the Securities in exchange for such
Securities.
The
Sponsor, as the Holder of all of the Common Securities, has the right at
any
time to dissolve the Trust (including, without limitation, upon the occurrence
of a Special Event), subject to the receipt by the Debenture Issuer of
prior
approval from the Board of Governors of the Federal Reserve System, or
its
designated district bank, as applicable, and any successor federal agency
that
is primarily responsible for regulating the activities of the Sponsor (the
“
Federal
Reserve
”),
if
the Sponsor is a bank holding company, or from the Office of Thrift Supervision
and any successor federal agency that is primarily responsible for regulating
the activities of Sponsor, (the “
OTS
”)
if the
Sponsor is a savings and loan holding company, in either case if then required
under applicable capital guidelines or policies of the Federal Reserve
or OTS,
as applicable, and, after satisfaction of liabilities to creditors of the
Trust,
cause the Debentures to be distributed to the Holders of the Securities
on a Pro
Rata basis in accordance with the aggregate stated liquidation amount
thereof.
If
a
Liquidation of the Trust occurs as described in clause (i), (ii),
(iii) or
(v) in Section 7.1(a) of the Declaration, the Trust shall be liquidated
by the
Institutional Trustee as expeditiously as it determines to be possible
by
distributing, after satisfaction of liabilities to creditors of the Trust,
to
the Holders of the
Securities,
the Debentures on a Pro Rata basis to the extent not satisfied by the
Debenture
Issuer, unless such distribution is determined by the Institutional Trustee
not
to be practical, in which event such Holders will be entitled to receive
out of
the assets of the Trust available for distribution to the Holders, after
satisfaction of liabilities of creditors of the Trust to the extent not
satisfied by the Debenture Issuer, an amount equal to the Liquidation
Distribution. An early Liquidation of the Trust pursuant to clause (iv)
of
Section 7.1(a) of the Declaration shall occur if the Institutional Trustee
determines that such Liquidation is possible by distributing, after satisfaction
of liabilities to creditors of the Trust, to the Holders of the Securities
on a
Pro Rata basis, the Debentures, and such distribution occurs.
If,
upon
any such Liquidation the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the
aggregate
Liquidation Distribution, then the amounts payable directly by the Trust
on such
Capital Securities shall be paid to the Holders of the Trust Securities
on a Pro
Rata basis, except that if an Event of Default has occurred and is continuing,
the Capital Securities shall have a preference over the Common Securities
with
regard to such distributions.
After
the
date for any distribution of the Debentures upon dissolution of the Trust
(i) the Securities of the Trust will be deemed to be no longer outstanding,
(ii) upon surrender of a Holder’s Securities certificate, such Holder of
the Securities will receive a certificate representing the Debentures to
be
delivered upon such distribution, (iii) any certificates representing
the
Securities still outstanding will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount
equal
to the aggregate stated liquidation amount with an interest rate identical
to
the Distribution Rate of, and bearing accrued and unpaid interest equal
to
accrued and unpaid distributions on, the Securities until such certificates
are
presented to the Debenture Issuer or its agent for transfer or reissuance
(and
until such certificates are so surrendered, no payments of interest or
principal
shall be made to Holders of Securities in respect of any payments due and
payable under the Debentures;
provided
,
however
that
such failure to pay shall not be deemed to be an Event of Default and shall
not
entitle the Holder to the benefits of the Guarantee), and (iv) all
rights
of Holders of Securities under the Declaration shall cease, except the
right of
such Holders to receive Debentures upon surrender of certificates representing
such Securities.
4.
Redemption
and Distribution
.
(a)
The
Debentures will mature on September 15, 2035. The Debentures may
be
redeemed by the Debenture Issuer, in whole or in part, at any Distribution
Payment Date on or after the Distribution Payment Date in September 2010,
at the
Redemption Price. In addition, the Debentures may be redeemed by the Debenture
Issuer at the Special Redemption Price, in whole but not in part, at any
Distribution Payment Date, upon the occurrence and continuation of a Special
Event within 120 days following the occurrence of such Special Event
at the
Special Redemption Price, upon not less than 30 nor more than 60 days’
notice to holders of such Debentures so long as such Special Event is
continuing. In each case, the right of the Debenture Issuer to redeem the
Debentures is subject to the Debenture Issuer having received prior approval
from the Federal Reserve (if the Debenture Issuer is a bank holding company)
or
prior approval from the OTS (if the Debenture Issuer is a savings and loan
holding company), in each case if then required under applicable capital
guidelines or policies of the applicable federal agency.
The
Sponsor shall appoint a Quotation Agent, which shall be a designee of the
Institutional Trustee, for the purpose of performing the services contemplated
in or by reference in, the definition of Special Redemption Price. Any
error in
the calculation of the Special Redemption Price by the Quotation Agent
or the
Debenture Trustee may be corrected at any time by notice delivered to the
Sponsor and the holders of the Capital Securities. Subject to the corrective
rights set forth above, all certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed,
made or
obtained for the purposes of the provisions relating to the payment and
calculation of the Special Redemption Price on the Debentures or the Capital
Securities by the Debenture Trustee, the
Quotation
Agent or the Institutional Trustee, as the case may be, shall (in the
absence of
willful default, bad faith or manifest error) be final, conclusive and
binding
on the holders of the Debentures and the Capital Securities, the Trust
and the
Sponsor, and no liability shall attach (except as provided above) to
the
Debenture Trustee, the Quotation Agent or the Institutional Trustee in
connection with the exercise or non-exercise by any of them of their
respective
powers, duties and discretion.
“
3-Month
LIBOR
”
means
the London interbank offered interest rate for three-month, U.S. dollar
deposits
determined by the Debenture Trustee in the following order of
priority:
(1)
the
rate
(expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date (as defined
below). “Telerate Page 3750” means the display designated as
“Page 3750” on the Moneyline Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services
as may
be nominated by the British Bankers’ Association as the information vendor for
the purpose of displaying London interbank offered rates for U.S. dollar
deposits;
(2)
if
such
rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks
in the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations;
(3)
if
fewer
than two such quotations are provided as requested in clause (2)
above, the
Debenture Trustee will request four major New York City banks to provide
such
banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars as of 11:00 a.m. (London
time) on
such Determination Date. If at least two such quotations are provided,
3-Month
LIBOR will be the arithmetic mean of such quotations; and
(4)
if
fewer
than two such quotations are provided as requested in clause (3)
above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution Period.
If
the
rate for U.S. dollar deposits having a three-month maturity that initially
appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on the
related Determination Date is superseded on the Telerate Page 3750
by a
corrected rate by 12:00 noon (London time) on such Determination
Date, then
the corrected rate as so substituted on the applicable page will be the
applicable 3-Month LIBOR for such Determination Date.
The
Distribution Rate for any Distribution Period will at no time be higher
than the
maximum rate then permitted by New York law as the same may be modified
by
United States law.
“
Capital
Treatment Event
”
means
the receipt by the Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of the occurrence
of
any amendment to, or change (including any announced prospective change)
in, the
laws, rules or regulations of the United States or any political subdivision
thereof or therein, or as the result of any official or administrative
pronouncement or action or decision interpreting or applying such laws,
rules or
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of original issuance
of the
Debentures, there is more than an insubstantial risk that the Sponsor will
not,
within 90 days of the date of such opinion, be entitled to treat an amount
equal
to the aggregate liquidation amount of the Capital Securities as “Tier 1
Capital” (or its then
equivalent)
for purposes of the capital adequacy guidelines of the Federal Reserve,
as then
in effect and applicable to the Sponsor (or if the Sponsor is not a bank
holding
company, such guidelines applied to the Sponsor as if the Sponsor were
subject
to such guidelines);
provided
,
however
,
that
the inability of the Sponsor to treat all or any portion of the liquidation
amount of the Capital Securities as Tier l Capital shall not constitute
the
basis for a Capital Treatment Event, if such inability results from the
Sponsor
having cumulative preferred stock, minority interests in consolidated
subsidiaries, or any other class of security or interest which the Federal
Reserve or OTS, as applicable, may now or hereafter accord Tier 1
Capital
treatment in excess of the amount which may now or hereafter qualify
for
treatment as Tier 1 Capital under applicable capital adequacy
guidelines;
provided
further
,
however
,
that
the distribution of Debentures in connection with the Liquidation of
the Trust
shall not in and of itself constitute a Capital Treatment Event unless
such
Liquidation shall have occurred in connection with a Tax Event or an
Investment
Company Event.
“
Comparable
Treasury Issue
”
means
with respect to any Special Redemption Date the United States Treasury
security
selected by the Quotation Agent as having a maturity comparable to the
Fixed
Rate Period Remaining Life that would be utilized, at the time of selection
and
in accordance with customary financial practice, in pricing new issues
of
corporate debt securities of comparable maturity to the Fixed Rate Period
Remaining Life. If no United States Treasury security has a maturity which
is
within a period from 3 months before to 3 months after the Distribution
Payment
Date in September 2010, the two most closely corresponding United States
Treasury securities as selected by the Quotation Agent shall be used as
the
Comparable Treasury Issue, and the Treasury Rate shall be interpolated
and
extrapolated on a straight-line basis, rounding to the nearest month using
such
securities.
“
Comparable
Treasury Price
”
means
(a) the average of 5 Reference Treasury Dealer Quotations for such
Special
Redemption Date, after excluding the highest and lowest such Reference
Treasury
Dealer Quotations, or (b) if the Quotation Agent obtains fewer than
5 such
Reference Treasury Dealer Quotations, the average of all such
Quotations.
“
Determination
Date
”
means
the date that is two London Banking Days (i.e., a business day in which
dealings
in deposits in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon Rate is
being
determined.
“
Fixed
Rate Period Remaining Life
”
means,
with respect to any Debenture, the period from the Special Redemption Date
for
such Debenture to the Distribution Payment Date in September 2010.
“
Investment
Company Event
”
means
the receipt by the Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of the occurrence
of
a change in law or regulation or written change (including any announced
prospective change) in interpretation or application of law or regulation
by any
legislative body, court, governmental agency or regulatory authority, there
is
more than an insubstantial risk that the Trust is or, within 90 days of
the date
of such opinion, will be considered an Investment Company that is required
to be
registered under the Investment Company Act which change or prospective
change
becomes effective or would become effective, as the case may be, on or
after the
date of the issuance of the Debentures.
“
Maturity
Date
”
means
September 15, 2035.
“
Primary
Treasury Dealer
”
shall
mean either a primary United States Government securities dealer or an
entity of
nationally recognized standing in matters pertaining to the quotation of
treasury securities that is reasonably acceptable to the Sponsor and the
Institutional Trustee.
“
Quotation
Agent
”
means a
designee of the Institutional Trustee who shall be a Primary Treasury
Dealer.
“
Redemption
Date
”
shall
mean the date fixed for the redemption of Capital Securities, which shall
be any
Distribution Payment Date on or after the Distribution Payment Date in
September
2010.
“
Redemption
Price
”
means
100% of the principal amount of the Debentures being redeemed, plus accrued
and
unpaid Interest on such Debentures to the Redemption Date.
“
Reference
Treasury Dealer
”
means
(i) the Quotation Agent and (ii) any other Primary Treasury
Dealer
selected by the Debenture Trustee after consultation with the Debenture
Issuer.
“
Reference
Treasury Dealer Quotations
”
means,
with respect to each Reference Treasury Dealer and any Special Redemption
Date,
the average, as determined by the Quotation Agent, of the bid and asked
prices
for the Comparable Treasury Issue (expressed in each case as a percentage
of its
principal amount) quoted in writing to the Debenture Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business
Day
preceding such Redemption Date.
“
Special
Event
”
means a
Tax Event, an Investment Company Event or a Capital Treatment
Event.
“
Special
Redemption Date
”
means a
date on which a Special Event redemption occurs, which shall be a Distribution
Payment Date.
“
Special
Redemption Price
”
means
(a) if the Special Redemption Date occurs before the Distribution
Payment
Date in September 2010, the greater of (i) 107.5% of the principal
amount
of the Debentures, plus accrued and unpaid Interest on the Debentures to
the
Special Redemption Date, or (ii) as determined by the Quotation
Agent,
(A) the sum of the present values of the scheduled payments of principal
and Interest on the Debentures during the Fixed Rate Period Remaining Life
of
the Debentures (assuming the Debentures matured on September 15,
2010)
discounted to the Special Redemption Date on a quarterly basis (assuming
a
360-day year consisting of twelve 30-day months) at the Treasury Rate,
plus
(B) accrued and unpaid Interest on the Debentures to such Special
Redemption Date, or (b) if the Special Redemption Date occurs on
or after
the Distribution Payment Date in September 2010, 100% of the principal
amount of
the Debentures being redeemed, plus accrued and unpaid Interest on such
Debentures to the Special Redemption Date.
“
Tax
Event
”
means
the receipt by the Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to
or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision
or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement including any notice or announcement of intent to adopt such
procedures or regulations) (an “
Administrative
Action
”)
or
judicial decision interpreting or applying such laws or regulations, regardless
of whether such Administrative Action or judicial decision is issued to
or in
connection with a proceeding involving the Debenture Issuer or the Trust
and
whether or not subject to review or appeal, which amendment, clarification,
change, Administrative Action or decision is enacted, promulgated or announced,
in each case on or after the date of original issuance of the Debentures,
there
is more than an insubstantial risk that: (i) the Trust is, or will
be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures;
(ii) interest payable by the Debenture Issuer on the Debentures
is not, or
within 90 days of the date of such opinion, will not be, deductible by
the
Debenture Issuer, in whole or in part, for United States federal income
tax
purposes; or (iii) the Trust is, or will be within 90 days of the
date of
such opinion, subject to more than a de minimis amount of other taxes,
duties or
other governmental charges.
“
Treasury
Rate
”
means
(i) the yield, under the heading which represents the average for
the week
immediately prior to the date of calculation, appearing in the most recently
published statistical release designated H.15 (519) or any successor publication
which is published weekly by the Federal Reserve and which establishes
yields on
actively traded United States Treasury securities adjusted to constant
maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Fixed Rate Period Remaining Life (if no maturity is within three
months
before or after the Fixed Rate Period Remaining Life, yields for the two
published maturities most closely corresponding to the Fixed Rate Period
Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to
the
nearest month) or (ii) if such release (or any successor release)
is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield
to
maturity of the Comparable Treasury Issue, calculated using a price for
the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Special Redemption Date.
The
Treasury Rate shall be calculated by the Quotation Agent on the third Business
Day preceding the Special Redemption Date.
(b)
Upon
the
repayment in full at maturity or redemption in whole or in part of the
Debentures (other than following the distribution of the Debentures to
the
Holders of the Securities), the proceeds from such repayment or payment
shall
concurrently be applied to redeem Pro Rata at the applicable Redemption
Price or
Special Redemption Price, as applicable, Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures
so
repaid or redeemed;
provided
,
however
,
that
holders of such Securities shall be given not less than 30 nor more than
60
days’ notice of such redemption (other than at the scheduled maturity of the
Debentures).
(c)
If
fewer
than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be
redeemed
Pro Rata from each Holder of Capital Securities.
(d)
The
Trust
may not redeem fewer than all the outstanding Capital Securities unless
all
accrued and unpaid Distributions have been paid on all Capital Securities
for
all quarterly Distribution periods terminating on or before the date of
redemption.
(e)
Redemption
or Distribution Procedures
.
(i)
Notice
of
any redemption of, or notice of distribution of the Debentures in exchange
for,
the Securities (a “
Redemption/Distribution
Notice
”)
will
be given by the Trust by mail to each Holder of Securities to be redeemed
or
exchanged not fewer than 30 nor more than 60 days before the date fixed
for
redemption or exchange thereof which, in the case of a redemption, will
be the
date fixed for redemption of the Debentures. For purposes of the calculation
of
the date of redemption or exchange and the dates on which notices are given
pursuant to this paragraph 4(e)(i), a Redemption/Distribution Notice
shall
be deemed to be given on the day such notice is first mailed by first-class
mail, postage prepaid, to Holders of such Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of such
Securities at the address of each such Holder appearing on the books and
records
of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing
thereof with respect to any Holder shall affect the validity of the redemption
or exchange proceedings with respect to any other Holder.
(ii)
If
the
Securities are to be redeemed and the Trust gives a Redemption/ Distribution
Notice, which notice may only be issued if the Debentures are redeemed
as set
out in this paragraph 4 (which notice will be irrevocable), then,
provided
that the
Institutional Trustee has a sufficient amount of cash in connection with
the
related redemption or maturity of the
Debentures,
the Institutional Trustee will pay the relevant Redemption Price or Special
Redemption Price, as applicable, to the Holders of such Securities by
check
mailed to the address of each such Holder appearing on the books and
records of
the Trust on the Redemption Date. If a Redemption/Distribution Notice
shall have
been given and funds deposited as required then immediately prior to
the close
of business on the date of such deposit Distributions will cease to accrue
on
the Securities so called for redemption and all rights of Holders of
such
Securities so called for redemption will cease, except the right of the
Holders
of such Securities to receive the applicable Redemption Price or Special
Redemption Price specified in paragraph 4(a), but without interest
on such
Redemption Price or Special Redemption Price. If payment of the Redemption
Price
or Special Redemption Price in respect of any Securities is improperly
withheld
or refused and not paid either by the Trust or by the Debenture Issuer
as
guarantor pursuant to the Guarantee, Distributions on such Securities
will
continue to accrue at the Distribution Rate from the original Redemption
Date to
the actual date of payment, in which case the actual payment date will
be
considered the date fixed for redemption for purposes of calculating
the
Redemption Price or Special Redemption Price. In the event of any redemption
of
the Capital Securities issued by the Trust in part, the Trust shall not
be
required to (i) issue, register the transfer of or exchange any
Security
during a period beginning at the opening of business fifteen days before
any
selection for redemption of the Capital Securities and ending at the
close of
business on the earliest date on which the relevant notice of redemption
is
deemed to have been given to all Holders of the Capital Securities to
be so
redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for
the
unredeemed portion of any Capital Securities being redeemed in
part.
(iii)
Redemption/Distribution
Notices shall be sent by the Administrators on behalf of the Trust to
(A) in respect of the Capital Securities, the Holders thereof and
(B) in respect of the Common Securities, the Holder thereof.
(iv)
Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and provided that the acquiror is not
the
Holder of the Common Securities or the obligor under the Indenture, the
Sponsor
or any of its subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or by private
agreement.
5.
Voting
Rights - Capital Securities
.
(a)
Except
as
provided under paragraphs 5(b) and 7 and as otherwise required by
law and
the Declaration, the Holders of the Capital Securities will have no voting
rights. The Administrators are required to call a meeting of the Holders
of the
Capital Securities if directed to do so by Holders of at least 10% in
liquidation amount of the Capital Securities.
(b)
Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee
in
certain circumstances set forth in the last sentence of this paragraph,
the
Holders of a Majority in liquidation amount of the Capital Securities,
voting
separately as a class, have the right to direct the time, method, and place
of
conducting any proceeding for any remedy available to the Institutional
Trustee,
or exercising any trust or power conferred upon the Institutional Trustee
under
the Declaration, including the right to direct the Institutional Trustee,
as
holder of the Debentures, to (i) exercise the remedies available
under the
Indenture as the holder of the Debentures, (ii) waive any past default
that
is waivable under 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 on behalf of all the Holders of the Capital
Securities to any amendment, modification or termination of the Indenture
or the
Debentures where such consent shall be required;
provided
,
however
,
that,
where a consent or action under the Indenture would require the
consent
or act of the holders of greater than a simple majority in aggregate
principal
amount of Debentures (a “
Super
Majority
”)
affected thereby, the Institutional Trustee may only give such consent
or take
such action at the written direction of the Holders of at least the proportion
in liquidation amount of the Capital Securities outstanding which the
relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its rights
under the
Debentures after the Holders of a Majority in liquidation amount of such
Capital
Securities have so directed the Institutional Trustee, to the fullest
extent
permitted by law, a Holder of the Capital Securities may institute a
legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and
is
continuing and such event is attributable to the failure of the Debenture
Issuer
to pay interest or principal on the Debentures on the date the interest
or
principal is payable (or in the case of redemption, the Redemption Date
or the
Special Redemption Date, as applicable), then a Holder of record of the
Capital
Securities may directly institute a proceeding for enforcement of payment,
on or
after the respective due dates specified in the Debentures, to such Holder
directly of the principal of or interest on the Debentures having an
aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder. The Institutional Trustee shall notify all
Holders of
the Capital Securities of any default actually known to the Institutional
Trustee with respect to the Debentures unless (x) such default
has been
cured prior to the giving of such notice or (y) the Institutional
Trustee
determines in good faith that the withholding of such notice is in the
interest
of the Holders of such Capital Securities, except where the default relates
to
the payment of principal of or interest on any of the Debentures. Such
notice
shall state that such Indenture Event of Default also constitutes an
Event of
Default hereunder. Except with respect to directing the time, method
and place
of conducting a proceeding for a remedy, the Institutional Trustee shall
not
take any of the actions described in clauses (i), (ii) or (iii)
above
unless the Institutional Trustee has obtained an opinion of tax counsel
to the
effect that, as a result of such action, the Trust will not be classified
as
other than a grantor trust for United States federal income tax
purposes.
In
the
event the consent of the Institutional Trustee, as the holder of the Debentures,
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture, the Institutional Trustee shall request the
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of
the Securities voting together as a single class;
provided
,
however
,
that
where a consent under the Indenture would require the consent of a
Super-Majority, the Institutional Trustee may only give such consent at
the
direction of the Holders of at least the proportion in liquidation amount
of the
Securities outstanding which the relevant Super-Majority represents of
the
aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the directions
of the
Holders of the Securities unless the Institutional Trustee has obtained
an
opinion of tax counsel to the effect that, as a result of such action,
the Trust
will not be classified as other than a grantor trust for United States
federal
income tax purposes.
A
waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders
of the
Capital Securities may be given at a separate meeting of Holders of the
Capital
Securities convened for such purpose, at a meeting of all of the Holders
of the
Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the Capital
Securities are entitled to vote, or of any matter upon which action by
written
consent of such Holders is to be taken, to be mailed to each Holder of
record of
the Capital Securities. Each such notice will include a statement setting
forth
the following information (i) the date of such meeting or the date
by which
such action is to be taken, (ii) a description of any resolution
proposed
for adoption at such meeting on which such Holders are entitled to vote
or of
such matter upon which written consent is sought and (iii) instructions
for
the delivery of proxies or consents. No vote or consent of the Holders
of the
Capital Securities will be required for the Trust to
redeem
and cancel Capital Securities or to distribute the Debentures in accordance
with
the Declaration and the terms of the Securities.
Notwithstanding
that Holders of the Capital Securities are entitled to vote or consent
under any
of the circumstances described above, any of the Capital Securities that
are
owned by the Sponsor or any Affiliate of the Sponsor shall not entitle
the
Holder thereof to vote or consent and shall, for purposes of such vote
or
consent, be treated as if such Capital Securities were not
outstanding.
In
no
event will Holders of the Capital Securities have the right to vote to
appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the Trust.
Under
certain circumstances as more fully described in the Declaration, Holders
of
Capital Securities have the right to vote to appoint, remove or replace
the
Institutional Trustee and the Delaware Trustee.
6.
Voting
Rights - Common Securities
.
(a)
Except
as
provided under paragraphs 6(b), 6(c) and 7 and as otherwise required
by law
and the Declaration, the Common Securities will have no voting
rights.
(b)
The
Holders of the Common Securities are entitled, in accordance with
Article IV of the Declaration, to vote to appoint, remove or replace
any
Administrators.
(c)
Subject
to Section 6.7 of the Declaration and only after each Event of Default
(if any)
with respect to the Capital Securities has been cured, waived, or otherwise
eliminated and subject to the requirements of the second to last sentence
of
this paragraph, the Holders of a Majority in liquidation amount of the
Common
Securities, voting separately as a class, may direct the time, method,
and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time,
method,
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waiving any past default and
its
consequences that is waivable under the Indenture, or (iii) exercising
any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable;
provided
,
however
,
that,
where a consent or action under the Indenture would require a Super Majority,
the Institutional Trustee may only give such consent or take such action
at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents
of
the aggregate principal amount of the Debentures outstanding. Notwithstanding
this paragraph 6(c), the Institutional Trustee shall not revoke
any action
previously authorized or approved by a vote or consent of the Holders of
the
Capital Securities. Other than with respect to directing the time, method
and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional
Trustee
shall not take any action described in (i), (ii) or (iii) above,
unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that
for the purposes of United States federal income tax the Trust will not
be
classified as other than a grantor trust on account of such action. If
the
Institutional Trustee fails to enforce its rights, to the fullest extent
permitted by law, under the Declaration, any Holder of the Common Securities
may
institute a legal proceeding directly against any Person to enforce the
Institutional Trustee’s rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other
Person.
Any
approval or direction of Holders of the Common Securities may be given
at a
separate meeting of Holders of the Common Securities convened for such
purpose,
at a meeting of all of the Holders of the Securities in the Trust or pursuant
to
written consent. The Administrators will cause a notice of any meeting
at which
Holders of the Common Securities are entitled to vote, or of any matter
upon
which action by written consent of such Holders is to be taken, to be
mailed to
each Holder of the Common Securities. Each such notice will include a
statement
setting forth (i) the date of such meeting or the date by which
such action
is to be taken, (ii) a description of any resolution proposed
for adoption
at such meeting on which such Holders are entitled to vote or of such
matter
upon which written consent is sought and (iii) instructions for
the
delivery of proxies or consents.
No
vote
or consent of the Holders of the Common Securities will be required for
the
Trust to redeem and cancel Common Securities or to distribute the Debentures
in
accordance with the Declaration and the terms of the Securities.
7.
Amendments
to Declaration and Indenture
.
(a)
In
addition to any requirements under Section 11.1 of the Declaration,
if any
proposed amendment to the Declaration provides for, or the Trustees, Sponsor
or
Administrators otherwise propose to effect, (i) any action that
would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
Liquidation of the Trust, other than as described in Section 7.1 of the
Declaration, then the Holders of outstanding Securities, voting together
as a
single class, will be entitled to vote on such amendment or proposal and
such
amendment or proposal shall not be effective except with the approval of
the
Holders of at least a Majority in liquidation amount of the Securities,
affected
thereby;
provided
,
however
,
if any
amendment or proposal referred to in clause (i) above would adversely
affect only the Capital Securities or only the Common Securities, then
only the
affected class will be entitled to vote on such amendment or proposal and
such
amendment or proposal shall not be effective except with the approval of
a
Majority in liquidation amount of such class of Securities.
(b)
In
the
event the consent of the Institutional Trustee as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture or the Debentures, the Institutional Trustee
shall
request the written direction of the Holders of the Securities with respect
to
such amendment, modification or termination and shall vote with respect
to such
amendment, modification, or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class;
provided
,
however
,
that
where a consent under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent at the direction of the
Holders
of at least the proportion in liquidation amount of the Securities which
the
relevant Super Majority represents of the aggregate principal amount of
the
Debentures outstanding.
(c)
Notwithstanding
the foregoing, no amendment or modification may be made to the Declaration
if
such amendment or modification would (i) cause the Trust to be classified
for purposes of United States federal income taxation as other than a grantor
trust, (ii) reduce or otherwise adversely affect the powers of the
Institutional Trustee or (iii) cause the Trust to be deemed an Investment
Company which is required to be registered under the Investment Company
Act.
(d)
Notwithstanding
any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of distributions and other payments upon
redemption or otherwise, on or after their respective due dates, or to
institute
a suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
For
the protection and enforcement of the foregoing provision, each and every
Holder
of the Capital Securities shall be entitled to such relief as can be given
either at law or equity.
8.
Pro
Rata
.
A
reference in these terms of the Securities to any payment, distribution
or
treatment as being “
Pro
Rata
”
shall
mean pro rata to each Holder of the Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation
to
the aggregate liquidation amount of all Securities then outstanding unless,
in
relation to a payment, an Event of Default
has
occurred and is continuing, in which case any funds available to make
such
payment shall be paid first to each Holder of the Capital Securities
Pro Rata
according to the aggregate liquidation amount of the Capital Securities
held by
the relevant Holder relative to the aggregate liquidation amount of all
Capital
Securities outstanding, and only after satisfaction of all amounts owed
to the
Holders of the Capital Securities, to each Holder of the Common Securities
Pro
Rata according to the aggregate liquidation amount of the Common Securities
held
by the relevant Holder relative to the aggregate liquidation amount of
all
Common Securities outstanding.
9.
Ranking
.
The
Capital Securities rank
pari
passu
with and
payment thereon shall be made Pro Rata with the Common Securities except
that,
where an Event of Default has occurred and is continuing, the rights of
Holders
of the Common Securities to receive payment of Distributions and payments
upon
liquidation, redemption and otherwise are subordinated to the rights of
the
Holders of the Capital Securities with the result that no payment of any
Distribution on, or Redemption Price (or Special Redemption Price) of,
any
Common Security, and no other payment on account of redemption, liquidation
or
other acquisition of Common Securities, shall be made unless payment in
full in
cash of all accumulated and unpaid Distributions on all outstanding Capital
Securities for all distribution periods terminating on or prior thereto,
or in
the case of payment of the Redemption Price (or Special Redemption Price)
the
full amount of such Redemption Price (or Special Redemption Price) on all
outstanding Capital Securities then called for redemption, shall have been
made
or provided for, and all funds immediately available to the Institutional
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price (or Special Redemption Price)
of, the
Capital Securities then due and payable.
10.
Acceptance
of Guarantee and Indenture
.
Each
Holder of the Capital Securities and the Common Securities, by the acceptance
of
such Securities, agrees to the provisions of the Guarantee, including the
subordination provisions therein and to the provisions of the
Indenture.
11.
No
Preemptive Rights
.
The
Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional securities.
12.
Miscellaneous
.
These
terms constitute a part of the Declaration. The Sponsor will provide a
copy of
the Declaration, the Guarantee, and the Indenture to a Holder without charge
on
written request to the Sponsor at its principal place of business.
EXHIBIT
A-1
FORM
OF CAPITAL SECURITY CERTIFICATE
[FORM
OF
FACE OF SECURITY]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY
(A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS
THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE
WITH
RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S AND THE TRUST’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY
BE
OBTAINED FROM THE SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS
SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY
IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL
NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES
OF $1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A
BLOCK
HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE
VOID
AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED
BY THE
DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Certificate
Number P-1
8,000
Capital Securities
[CUSIP
NO. [_______] **
To
be
inserted at the request of a subsequent transferee]
August 29,
2005
Certificate
Evidencing Fixed/Floating Rate Capital Securities
of
WT Capital
Trust I
(liquidation
amount $1,000.00 per Capital Security)
WT Capital
Trust I, a statutory trust created under the laws of the State of
Delaware
(the “Trust”), hereby certifies that First Tennessee Bank National Association
is the registered owner of capital securities of the Trust representing
undivided beneficial interests in the assets of the Trust, (liquidation amount
$1,000.00 per capital security) (the “Capital Securities”). Subject to the
Declaration (as defined below), the Capital Securities are transferable on
the
books and records of the Trust in person or by a duly authorized attorney,
upon
surrender of this Certificate duly endorsed and in proper form for transfer.
The
Capital Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities shall in all respects be subject to,
the
provisions of the Amended and Restated Declaration of Trust of the Trust
dated
as of August 29, 2005, among David V. Devault, John C.
Warren and
John F. Treanor, as Administrators, Wilmington Trust Company, as Delaware
Trustee, Wilmington Trust Company, as Institutional Trustee, Washington Trust
Bancorp, Inc., as Sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation
of
the terms of the Capital Securities as set forth in Annex I to such
amended
and restated declaration as the same may be amended from time to time (the
“Declaration”). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of
the Guarantee to the extent provided therein. The Sponsor will provide a
copy of
the Declaration, the Guarantee, and the Indenture to the Holder without charge
upon written request to the Sponsor at its principal place of
business.
Upon
receipt of this Security, the Holder is bound by the Declaration and is entitled
to the benefits thereunder.
By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures.
This
Capital Security is governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to principles of conflict of
laws.
Signatures
appear on following page
IN
WITNESS WHEREOF, the Trust has duly executed this certificate
WT
CAPITAL TRUST I
By:
Name:
Title:
Administrator
CERTIFICATE
OF AUTHENTICATION
This
is one of the Capital Securities referred to in the
within-mentioned Declaration.
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee
By:
Authorized
Officer
[FORM
OF
REVERSE OF CAPITAL SECURITY]
Distributions
payable on each Capital Security will be payable at an annual rate equal
to
5.965% beginning on (and including) the date of original issuance and ending
on
(but excluding) the Distribution Payment Date in September 2010 and at an
annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in September 2010, and each succeeding Distribution Payment
Date,
and ending on (but excluding) the next succeeding Distribution Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 1.45% (the “Coupon Rate”), applied to the stated liquidation amount
of $1,000.00 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions
in
arrears will bear interest thereon compounded quarterly at the Distribution
Rate
(to the extent permitted by applicable law). The term “Distributions” as used
herein includes cash distributions and any such compounded distributions
unless
otherwise noted. A Distribution is payable only to the extent that payments
are
made in respect of the Debentures held by the Institutional Trustee and to
the
extent the Institutional Trustee has funds available therefor. As used herein,
“Determination Date” means the date that is two London Banking Days (i.e., a
business day in which dealings in deposits in U.S. dollars are transacted
in the
London interbank market) preceding the commencement of the relevant Distribution
Period. The amount of the Distribution payable (i) for any Distribution
Period commencing on or after the date of original issuance but before the
Distribution Payment Date in September 2010 will be computed on the basis
of a
360-day year of twelve 30-day months, and (ii) for the Distribution
Period
commencing on the Distribution Payment Date in September 2010 and each
succeeding Distribution Period will be calculated by applying the Distribution
Rate to the stated liquidation amount outstanding at the commencement of
the
Distribution Period on the basis of the actual number of days in the
Distribution Period concerned divided by 360.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Debenture Trustee in the
following order of priority: (i) the rate (expressed as a percentage per
annum)
for U.S. dollar deposits having a three-month maturity that appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related Determination Date
(“Telerate Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate Service or such other page as may replace Page 3750 on
that
service or such other service or services as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Debenture Trustee
will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London time)
on
such Determination Date. If at least two quotations are provided, 3-Month
LIBOR
will be the arithmetic mean of such quotations; (iii) if fewer than
two
such quotations are provided as requested in clause (ii) above, the Debenture
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month
LIBOR
will be the arithmetic mean of such quotations; and (iv) if fewer
than two
such quotations are provided as requested in clause (iii) above, 3-Month
LIBOR
will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period. If the rate for U.S.
dollar deposits having a three-month maturity that initially appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related Determination Date
is
superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London
time) on such Determination Date, then the corrected rate as so substituted
on
the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.
The
Distribution Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Capital Securities will
be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all
dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15
and
December 15 of each year or if any such day is not a Business Day,
then the
next succeeding Business Day (each such day, a “Distribution Payment Date”),
commencing on the Distribution Payment Date in December 2005. The Debenture
Issuer has the right under the Indenture to defer payments of interest on
the
Debentures, so long as no Acceleration Event of Default has occurred and
is
continuing, by extending the interest payment period for up to 20 consecutive
quarterly periods (each an “Extension Period”) at any time and from time to time
on the Debentures, subject to the conditions described below, during which
Extension Period no interest shall be due and payable. During any Extension
Period, interest will continue to accrue on the Debentures, and interest
on such
accrued interest will accrue at an annual rate equal to the Distribution
Rate in
effect for each such Extension Period, compounded quarterly from the date
such
interest would have been payable were it not for the Extension Period, to
the
extent permitted by law (such interest referred to herein as “Additional
Interest”). No Extension Period may end on a date other than a Distribution
Payment Date. At the end of any such Extension Period, the Debenture Issuer
shall pay all interest then accrued and unpaid on the Debentures (together
with
Additional Interest thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date. Prior to the termination
of any Extension Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and further
consecutive extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest
and
Additional Interest, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest or Additional Interest
shall
be due and payable during an Extension Period, except at the end thereof,
but
each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Capital Securities shall be deferred
for
a period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, to Holders of the Securities as they appear on the books and
records
of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect
to any
Extension Period) to the extent that the Trust has funds available for the
payment of such distributions in the Property Account of the Trust. The Trust’s
funds available for Distribution to the Holders of the Securities will be
limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Guarantee.
The
Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate 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 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)
Signature
Guarantee
(1)
:
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
EXHIBIT
A-2
FORM
OF
COMMON SECURITY CERTIFICATE
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT
PURSUANT TO AN EXEMPTION FROM REGISTRATION.
THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1
OF
THE DECLARATION.
Certificate
Number C
-
1
248
Common Securities
August 29,
2005
Certificate
Evidencing Fixed/Floating Rate Common Securities
of
WT Capital
Trust I
WT Capital
Trust I, a statutory trust created under the laws of the State of
Delaware
(the “Trust”), hereby certifies that Washington Trust Bancorp, Inc. (the
“Holder”) is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust (the “Common
Securities”). The Common Securities represented hereby are issued pursuant to,
and the designation, rights, privileges, restrictions, preferences and
other
terms and provisions of the Common Securities shall in all respects be
subject
to, the provisions of the Amended and Restated Declaration of Trust of
the Trust
dated as of August 29, 2005, among David V. Devault, John C.
Warren and John F. Treanor, as Administrators, Wilmington Trust
Company, as
Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Washington
Trust Bancorp, Inc., as Sponsor, and the holders from time to time of undivided
beneficial interest in the assets of the Trust including the designation
of the
terms of the Common Securities as set forth in Annex I to such amended
and
restated declaration, as the same may be amended from time to time (the
“Declaration”). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of
the Guarantee to the extent provided therein. The Sponsor will provide
a copy of
the Declaration, the Guarantee and the Indenture to the Holder without
charge
upon written request to the Sponsor at its principal place of
business.
As
set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of Holders of Common Securities to payment in respect
of
Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Capital
Securities.
Upon
receipt of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United
States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Common Security is governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to principles of conflict of
laws.
IN
WITNESS WHEREOF, the Trust has duly executed this certificate
WT
CAPITAL TRUST I
By:
Name:
Title:
Administrator
[FORM
OF
REVERSE OF COMMON SECURITY]
Distributions
payable on each Common Security will be payable at an annual rate equal
to
5.965% beginning on (and including) the date of original issuance and ending
on
(but excluding) the Distribution Payment Date in September 2010 and at
an annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in September 2010, and each succeeding Distribution Payment
Date,
and ending on (but excluding) the next succeeding Distribution Payment
Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 1.45% (the “Coupon Rate”), applied to the stated liquidation amount
of $1,000.00 per Common Security, such rate being the rate of interest
payable
on the Debentures to be held by the Institutional Trustee. Distributions
in
arrears will bear interest thereon compounded quarterly at the Distribution
Rate
(to the extent permitted by applicable law). The term “Distributions” as used
herein includes cash distributions and any such compounded distributions
unless
otherwise noted. A Distribution is payable only to the extent that payments
are
made in respect of the Debentures held by the Institutional Trustee and
to the
extent the Institutional Trustee has funds available therefor. As used
herein,
“Determination Date” means the date that is two London Banking Days (i.e., a
business day in which dealings in deposits in U.S. dollars are transacted
in the
London interbank market) preceding the commencement of the relevant Distribution
Period. The amount of the Distribution payable (i) for any Distribution
Period commencing on or after the date of original issuance but before
the
Distribution Payment Date in September 2010 will be computed on the basis
of a
360-day year of twelve 30-day months, and (ii) for the Distribution
Period
commencing on the Distribution Payment Date in September 2010 and each
succeeding Distribution Period will be calculated by applying the Distribution
Rate to the stated liquidation amount outstanding at the commencement of
the
Distribution Period on the basis of the actual number of days in the
Distribution Period concerned divided by 360.
“3
-
Month
LIBOR” as used herein, means the London interbank offered interest rate for
three
-
month
U.S. dollar deposits determined by the Debenture Trustee in the following
order
of priority: (i) the rate (expressed as a percentage per annum) for U.S.
dollar
deposits having a three
-
month
maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on
the related Determination Date (“Telerate Page 3750” means the display
designated as “Page 3750” on the Moneyline Telerate Service or such other page
as may replace Page 3750 on that service or such other service or services
as
may be nominated by the British Bankers’ Association as the information vendor
for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination
Date, the Debenture Trustee will request the principal London offices of
four
leading banks in the London interbank market to provide such banks’ offered
quotations (expressed as percentages per annum) to prime banks in the London
interbank market for U.S. dollar deposits having a three
-
month
maturity as of 11:00 a.m. (London time) on such Determination Date. If
at least
two quotations are provided, 3
-
Month
LIBOR will be the arithmetic mean of such quotations; (iii) if fewer than
two
such quotations are provided as requested in clause (ii) above, the Debenture
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3
-
Month
LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer
than two
such quotations are provided as requested in clause (iii) above, 3
-
Month
LIBOR will be a 3
-
Month
LIBOR determined with respect to the Distribution Period immediately preceding
such current Distribution Period. If the rate for U.S. dollar deposits
having a
three
-
month
maturity that initially appears on Telerate Page 3750 as of 11:00 a.m.
(London
time) on the related Determination Date is superseded on the Telerate Page
3750
by a corrected rate by 12:00 noon (London time) on such Determination Date,
then
the corrected rate as so substituted on the applicable page will be the
applicable 3
-
Month
LIBOR for such Determination Date.
The
Distribution Rate for any Distribution Period will at no time be higher
than the
maximum rate then permitted by New York law as the same may be modified
by
United States law.
All
percentages resulting from any calculations on the Common Securities will
be
rounded, if necessary, to the nearest one hundred
-
thousandth
of a percentage point, with five one
-
millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one
-
half
cent
being rounded upward)).
Except
as
otherwise described below, Distributions on the Common Securities will
be
cumulative, will accrue from the date of original issuance and will be
payable
quarterly in arrears on March 15, June 15, September 15
and
December 15 of each year or if any such day is not a Business Day,
then the
next succeeding Business Day (each such day, a “Distribution Payment Date”),
commencing on the Distribution Payment Date in December 2005. The Debenture
Issuer has the right under the Indenture to defer payments of interest
on the
Debentures, so long as no Acceleration Event of Default has occurred and
is
continuing, by extending the interest payment period for up to
20 consecutive quarterly periods (each an “Extension Period”) at any time
and from time to time on the Debentures, subject to the conditions described
below, during which Extension Period no interest shall be due and payable.
During any Extension Period, interest will continue to accrue on the Debentures,
and interest on such accrued interest will accrue at an annual rate equal
to the
Distribution Rate in effect for each such Extension Period, compounded
quarterly
from the date such interest would have been payable were it not for the
Extension Period, to the extent permitted by law (such interest referred
to
herein as “Additional Interest”). No Extension Period may end on a date other
than a Distribution Payment Date. At the end of any such Extension Period,
the
Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date. Prior to the termination
of any Extension Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and further
consecutive extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest
and
Additional Interest, the Debenture Issuer may commence a new Extension
Period,
subject to the foregoing requirements. No interest or Additional Interest
shall
be due and payable during an Extension Period, except at the end thereof,
but
each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Common Securities shall be deferred
for a
period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension
Period
terminates, to Holders of the Securities as they appear on the books and
records
of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect
to any
Extension Period) to the extent that the Trust has funds available for
the
payment of such distributions in the Property Account of the Trust. The
Trust’s
funds available for Distribution to the Holders of the Securities will
be
limited to payments received from the Debenture Issuer.
The
Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Common Security Certificate
to:
(Insert
assignee’s social security or tax identification number)
(Insert
address and zip code of assignee) and irrevocably appoints
agent to transfer this Common Security Certificate on the books of
the
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 Common Security
Certificate)
Signature:
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
Signature
Guarantee
(2)
(2)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union, meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
EXHIBIT
B
SPECIMEN
OF INITIAL DEBENTURE
(See
Document No. 17)
EXHIBIT
C
PLACEMENT
AGREEMENT
(See
Document No. 1)
Exhibit 10.2
WASHINGTON
TRUST BANCORP, INC.
,
as
Issuer
INDENTURE
Dated
as of August 29, 2005
WILMINGTON
TRUST COMPANY
,
as
Trustee
FIXED/FLOATING
RATE JUNIOR
SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
DUE
2035
TABLE
OF CONTENTS
Page
|
ARTICLE
I. DEFINITIONS
|
|
|
Section
1.1.
|
Definitions.
|
|
|
ARTICLE
II. DEBENTURES
|
|
|
Section
2.1.
|
Authentication
and Dating.
|
|
|
Section
2.2.
|
Form
of Trustee’s Certificate of Authentication.
|
|
|
Section
2.3.
|
Form
and Denomination of Debentures.
|
|
|
Section
2.4.
|
Execution
of Debentures.
|
|
|
Section
2.5.
|
Exchange
and Registration of Transfer of Debentures.
|
|
|
Section
2.6.
|
Mutilated,
Destroyed, Lost or Stolen Debentures.
|
|
|
Section
2.7.
|
Temporary
Debentures.
|
|
|
Section
2.8.
|
Payment
of Interest and Additional Interest.
|
|
|
Section
2.9.
|
Cancellation
of Debentures Paid, etc.
|
|
|
Section
2.10.
|
Computation
of Interest.
|
|
|
Section
2.11.
|
Extension
of Interest Payment Period.
|
|
|
Section
2.12.
|
CUSIP
Numbers.
|
|
|
ARTICLE
III. PARTICULAR COVENANTS OF THE COMPANY
|
|
|
Section
3.1.
|
Payment
of Principal, Premium and Interest; Agreed Treatment of the
Debentures.
|
|
|
Section
3.2.
|
Offices
for Notices and Payments, etc.
|
|
|
Section
3.3.
|
Appointments
to Fill Vacancies in Trustee’s Office.
|
|
|
Section
3.4.
|
Provision
as to Paying Agent.
|
|
|
Section
3.5.
|
Certificate
to Trustee.
|
|
|
Section
3.6.
|
Additional
Sums.
|
|
|
Section
3.7.
|
Compliance
with Consolidation Provisions.
|
|
|
Section
3.8.
|
Limitation
on Dividends.
|
|
|
Section
3.9.
|
Covenants
as to the Trust.
|
|
|
Section
3.10.
|
Additional
Junior Indebtedness.
|
|
|
ARTICLE
IV. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
|
|
|
Section
4.1.
|
Securityholders’
Lists.
|
|
|
Section
4.2.
|
Preservation
and Disclosure of Lists.
|
|
|
ARTICLE
V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT
OF
DEFAULT
|
|
|
Section
5.1.
|
Events
of Default.
|
|
|
Section
5.2.
|
Payment
of Debentures on Default; Suit Therefor.
|
|
|
Section
5.3.
|
Application
of Moneys Collected by Trustee.
|
|
|
Section
5.4.
|
Proceedings
by Securityholders.
|
|
|
Section
5.5.
|
Proceedings
by Trustee.
|
|
|
Section
5.6.
|
Remedies
Cumulative and Continuing; Delay or Omission Not a Waiver.
|
|
|
Section
5.7.
|
Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders.
|
|
|
Section
5.8.
|
Notice
of Defaults.
|
|
|
Section
5.9.
|
Undertaking
to Pay Costs.
|
|
|
ARTICLE
VI. CONCERNING THE TRUSTEE
|
|
|
Section
6.1.
|
Duties
and Responsibilities of Trustee.
|
|
|
Section
6.2.
|
Reliance
on Documents, Opinions, etc.
|
|
|
Section
6.3.
|
No
Responsibility for Recitals, etc.
|
|
|
Section
6.4.
|
Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own
Debentures.
|
|
|
Section
6.5.
|
Moneys
to be Held in Trust.
|
|
|
Section
6.6.
|
Compensation
and Expenses of Trustee.
|
|
|
Section
6.7.
|
Officers’
Certificate as Evidence.
|
|
|
Section
6.8.
|
Eligibility
of Trustee.
|
|
|
Section
6.9.
|
Resignation
or Removal of Trustee
|
|
|
Section
6.10.
|
Acceptance
by Successor Trustee.
|
|
|
Section
6.11.
|
Succession
by Merger, etc.
|
|
|
Section
6.12.
|
Authenticating
Agents.
|
|
|
ARTICLE
VII. CONCERNING THE SECURITYHOLDERS
|
|
|
Section
7.1.
|
Action
by Securityholders.
|
|
|
Section
7.2.
|
Proof
of Execution by Securityholders.
|
|
|
Section
7.3.
|
Who
Are Deemed Absolute Owners.
|
|
|
Section
7.4.
|
Debentures
Owned by Company Deemed Not Outstanding.
|
|
|
Section
7.5.
|
Revocation
of Consents; Future Holders Bound.
|
|
|
ARTICLE
VIII. SECURITYHOLDERS’ MEETINGS
|
|
|
Section
8.1.
|
Purposes
of Meetings.
|
|
|
Section
8.2.
|
Call
of Meetings by Trustee.
|
|
|
Section
8.3.
|
Call
of Meetings by Company or Securityholders.
|
|
|
Section
8.4.
|
Qualifications
for Voting.
|
|
|
Section
8.5.
|
Regulations.
|
|
|
Section
8.6.
|
Voting.
|
|
|
Section
8.7.
|
Quorum;
Actions.
|
|
|
ARTICLE
IX. SUPPLEMENTAL INDENTURES
|
|
|
Section
9.1.
|
Supplemental
Indentures without Consent of Securityholders.
|
|
|
Section
9.2.
|
Supplemental
Indentures with Consent of Securityholders.
|
|
|
Section
9.3.
|
Effect
of Supplemental Indentures.
|
|
|
Section
9.4.
|
Notation
on Debentures.
|
|
|
Section
9.5.
|
Evidence
of Compliance of Supplemental Indenture to be Furnished to
Trustee.
|
|
|
ARTICLE
X. REDEMPTION OF SECURITIES
|
|
|
Section
10.1.
|
Optional
Redemption.
|
|
|
Section
10.2.
|
Special
Event Redemption.
|
|
|
Section
10.3.
|
Notice
of Redemption; Selection of Debentures.
|
|
|
Section
10.4.
|
Payment
of Debentures Called for Redemption.
|
|
|
ARTICLE
XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
|
|
|
Section
11.1.
|
Company
May Consolidate, etc., on Certain Terms.
|
|
|
Section
11.2.
|
Successor
Entity to be Substituted.
|
|
|
Section
11.3.
|
Opinion
of Counsel to be Given to Trustee.
|
|
|
ARTICLE
XII. SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
Section
12.1.
|
Discharge
of Indenture.
|
|
|
Section
12.2.
|
Deposited
Moneys to be Held in Trust by Trustee.
|
|
|
Section
12.3.
|
Paying
Agent to Repay Moneys Held.
|
|
|
Section
12.4.
|
Return
of Unclaimed Moneys.
|
|
|
ARTICLE
XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
|
|
|
Section
13.1.
|
Indenture
and Debentures Solely Corporate Obligations.
|
|
|
ARTICLE
XIV. MISCELLANEOUS PROVISIONS
|
|
|
Section
14.1.
|
Successors.
|
|
|
Section
14.2.
|
Official
Acts by Successor Entity.
|
|
|
Section
14.3.
|
Surrender
of Company Powers.
|
|
|
Section
14.4.
|
Addresses
for Notices, etc.
|
|
|
Section
14.5.
|
Governing
Law.
|
|
|
Section
14.6.
|
Evidence
of Compliance with Conditions Precedent.
|
|
|
Section
14.7.
|
Table
of Contents, Headings, etc.
|
|
|
Section
14.8.
|
Execution
in Counterparts.
|
|
|
Section
14.9.
|
Separability.
|
|
|
Section
14.10.
|
Assignment.
|
|
|
Section
14.11.
|
Acknowledgment
of Rights.
|
|
|
ARTICLE
XV. SUBORDINATION OF DEBENTURES
|
|
|
Section
15.1.
|
Agreement
to Subordinate.
|
|
|
Section
15.2.
|
Default
on Senior Indebtedness.
|
|
|
Section
15.3.
|
Liquidation,
Dissolution, Bankruptcy.
|
|
|
Section
15.4.
|
Subrogation.
|
|
|
Section
15.5.
|
Trustee
to Effectuate Subordination.
|
|
|
Section
15.6.
|
Notice
by the Company.
|
|
|
Section
15.7.
|
Rights
of the Trustee; Holders of Senior Indebtedness.
|
|
|
Section
15.8.
|
Subordination
May Not Be Impaired.
|
|
Exhibit
A
Form
of
Fixed/Floating Rate Junior Subordinated Deferrable Interest
Debenture
Exhibit
B
Form
of
Certificate to Trustee
THIS
INDENTURE, dated as of August 29, 2005, between Washington Trust
Bancorp,
Inc., a Rhode Island corporation (the “
Company
”),
and
Wilmington Trust Company, a Delaware banking corporation, as debenture
trustee
(the “
Trustee
”).
WITNESSETH:
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the
issuance
of its Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2035 (the “
Debentures
”)
under
this Indenture to provide, among other things, for the execution and
authentication, delivery and administration thereof, and the Company has
duly
authorized the execution of this Indenture; and
WHEREAS,
all acts and things necessary to make this Indenture a valid agreement
according
to its terms, have been done and performed;
NOW,
THEREFORE, This Indenture Witnesseth:
In
consideration of the premises, and the purchase of the Debentures by the
holders
thereof, the Company covenants and agrees with the Trustee for the equal
and
proportionate benefit of the respective holders from time to time of the
Debentures as follows:
ARTICLE
I.
DEFINITIONS
Section
1.1.
Definitions
.
The
terms
defined in this Section 1.1 (except as herein otherwise expressly
provided
or unless the context otherwise requires) for all purposes of this Indenture
and
of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1. All accounting terms used herein
and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
“herein,”“hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other
subdivision.
“
Acceleration
Event of Default
”
means
an Event of Default under Section 5.1(a), (d), (e) or (f), whatever
the
reason for such Acceleration Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
“
Additional
Interest
”
has the
meaning set forth in Section 2.11.
“
Additional
Junior Indebtedness
”
means,
without duplication and other than the Debentures, any indebtedness, liabilities
or obligations of the Company, or any Subsidiary of the Company, under
debt
securities (or guarantees in respect of debt securities) initially issued
after
the date of this Indenture to any trust, or a trustee of a trust, partnership
or
other entity affiliated with the Company that is, directly or indirectly,
a
finance subsidiary (as such term is defined in Rule 3a-5 under the Investment
Company Act of 1940) or other financing vehicle of the Company or any Subsidiary
of the Company in connection with the issuance by that entity of preferred
securities or other securities that are eligible to qualify for Tier 1
capital treatment (or its then equivalent) for purposes of the capital
adequacy
guidelines of the Federal Reserve, as then in effect and applicable to
the
Company (or, if the Company is not a bank holding company, such guidelines
applied to the Company as if the Company were subject to such guidelines);
provided
,
however
,
that
the inability of the Company to treat all or any portion of the Additional
Junior Indebtedness as Tier 1 capital shall not disqualify it as
Additional
Junior Indebtedness if such inability results from the Company having cumulative
preferred stock, minority interests in consolidated
subsidiaries,
or any other class of security or interest which the Federal Reserve
now or may
hereafter accord Tier 1 capital treatment (including the Debentures)
in
excess of the amount which may qualify for treatment as Tier 1
capital
under applicable capital adequacy guidelines.
“
Additional
Sums
”
has the
meaning set forth in Section 3.6.
“
Affiliate
”
has the
same meaning as given to that term in Rule 405 of the Securities
Act or any
successor rule thereunder.
“
Authenticating
Agent
”
means
any agent or agents of the Trustee which at the time shall be appointed
and
acting pursuant to Section 6.12.
“
Bankruptcy
Law
”
means
Title 11, U.S. Code, or any similar federal or state law for the
relief of
debtors.
“
Board
of Directors
”
means
the board of directors or the executive committee or any other duly authorized
designated officers of the Company.
“
Board
Resolution
”
means a
copy of a resolution certified by the Secretary or an Assistant Secretary
of the
Company to have been duly adopted by the Board of Directors and to be in
full
force and effect on the date of such certification and delivered to the
Trustee.
“
Business
Day
”
means
any day other than a Saturday, Sunday or any other day on which banking
institutions in New York City or Wilmington, Delaware are permitted or
required
by any applicable law or executive order to close.
“
Capital
Securities
”
means
undivided beneficial interests in the assets of the Trust which rank
pari
passu
with
Common Securities issued by the Trust;
provided
,
however
,
that
upon the occurrence and continuance of an Event of Default (as defined
in the
Declaration), the rights of holders of such Common Securities to payment
in
respect of distributions and payments upon liquidation, redemption and
otherwise
are subordinated to the rights of holders of such Capital
Securities.
“
Capital
Securities Guarantee
”
means
the guarantee agreement that the Company enters into with Wilmington Trust
Company, as guarantee trustee, or other Persons that operates directly
or
indirectly for the benefit of holders of Capital Securities of the
Trust.
“
Capital
Treatment Event
”
means
the receipt by the Company and the Trust of an opinion of counsel experienced
in
such matters to the effect that, as a result of the occurrence of any amendment
to, or change (including any announced prospective change) in, the laws,
rules
or regulations of the United States or any political subdivision thereof
or
therein, or as the result of any official or administrative pronouncement
or
action or decision interpreting or applying such laws, rules or regulations,
which amendment or change is effective or which pronouncement, action or
decision is announced on or after the date of original issuance of the
Debentures, there is more than an insubstantial risk that the Company will
not,
within 90 days of the date of such opinion, be entitled to treat an amount
equal
to the aggregate liquidation amount of the Capital Securities as “Tier 1
Capital” (or its then equivalent) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to
the
Company (or if the Company is not a bank holding company, such guidelines
applied to the Company as if the Company were subject to such guidelines);
provided
,
however
,
that
the inability of the Company to treat all or any portion of the liquidation
amount of the Capital Securities as Tier l Capital shall not constitute
the
basis for a Capital Treatment Event, if such inability results from the
Company
having cumulative preferred stock, minority interests in consolidated
subsidiaries, or any other class of security or interest which the Federal
Reserve or OTS, as applicable, may now or hereafter accord Tier 1
Capital
treatment in excess of
the
amount which may now or hereafter qualify for treatment as Tier 1
Capital
under applicable capital adequacy guidelines;
provided
further
,
however
,
that
the distribution of Debentures in connection with the liquidation of
the Trust
shall not in and of itself constitute a Capital Treatment Event unless
such
liquidation shall have occurred in connection with a Tax Event or an
Investment
Company Event.
“
Certificate
”
means a
certificate signed by any one of the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company.
“
Common
Securities
”
means
undivided beneficial interests in the assets of the Trust which rank
pari
passu
with
Capital Securities issued by the Trust;
provided
,
however
,
that
upon the occurrence and continuance of an Event of Default (as defined
in the
Declaration), the rights of holders of such Common Securities to payment
in
respect of distributions and payments upon liquidation, redemption and
otherwise
are subordinated to the rights of holders of such Capital
Securities.
“
Company
”
means
Washington Trust Bancorp, Inc., a Rhode Island corporation, and, subject
to the
provisions of Article XI, shall include its successors and
assigns.
“
Comparable
Treasury Issue
”
means
with respect to any Special Redemption Date the United States Treasury
security
selected by the Quotation Agent as having a maturity comparable to the
Fixed
Rate Period Remaining Life that would be utilized, at the time of selection
and
in accordance with customary financial practice, in pricing new issues
of
corporate debt securities of comparable maturity to the Fixed Rate Period
Remaining Life. If no United States Treasury security has a maturity which
is
within a period from three months before to three months after the Interest
Payment Date in September 2010, the two most closely corresponding fixed,
non-callable United States Treasury securities, as selected by the Quotation
Agent, shall be used as the Comparable Treasury Issue, and the Treasury
Rate
shall be interpolated or extrapolated on a straight-line basis, rounding
to the
nearest month using such securities.
“
Comparable
Treasury Price
”
means
(a) the average of five Reference Treasury Dealer Quotations for such Special
Redemption Date, after excluding the highest and lowest such Reference
Treasury
Dealer Quotations, or (b) if the Quotation Agent obtains fewer than five
such
Reference Treasury Dealer Quotations, the average of all such
Quotations.
“
Coupon
Rate
”
has the
meaning set forth in Section 2.8.
“
Debenture
”
or
“
Debentures
”
has the
meaning stated in the first recital of this Indenture.
“
Debenture
Register
”
has the
meaning specified in Section 2.5.
“
Declaration
”
means
the Amended and Restated Declaration of Trust of the Trust, as amended
or
supplemented from time to time.
“
Default
”
means
any event, act or condition that with notice or lapse of time, or both,
would
constitute an Event of Default.
“
Defaulted
Interest
”
has the
meaning set forth in Section 2.8.
“
Distribution
Period
”
means
(i) with respect to interest paid on the first Interest Payment
Date, the
period beginning on (and including) the date of original issuance and ending
on
(but excluding) the Interest Payment Date in December 2005 and
(ii) thereafter, with respect to interest paid on each successive
Interest
Payment Date, the period beginning on (and including) the preceding Interest
Payment Date and ending on (but excluding) such current Interest Payment
Date.
“
Determination
Date
”
has the
meaning set forth in Section 2.10.
“
Event
of Default
”
means
any event specified in Section 5.1, continued for the period of
time, if
any, and after the giving of the notice, if any, therein
designated.
“
Extension
Period
”
has the
meaning set forth in Section 2.11.
“
Federal
Reserve
”
means
the Board of Governors of the Federal Reserve System, or its designated
district
bank, as applicable, and any successor federal agency that is primarily
responsible for regulating the activities of bank holding
companies.
“
Fixed
Rate Period Remaining Life
”
means,
with respect to any Debenture, the period from the Special Redemption Date
for
such Debenture to the Interest Payment Date in September 2010.
“
Indenture
”
means
this instrument as originally executed or, if amended or supplemented as
herein
provided, as so amended or supplemented, or both.
“
Institutional
Trustee
”
has the
meaning set forth in the Declaration.
“
Interest
Payment Date
”
means
March 15, June 15, September 15 and December 15
of each year
during the term of this Indenture, or if such day is not a Business Day,
then
the next succeeding Business Day, commencing in December 2005.
“
Interest
Rate
”
means
for the Distribution Period beginning on (and including) the date of original
issuance and ending on (but excluding) the Interest Payment Date in September
2010 the rate per annum of 5.965%, and for each Distribution Period beginning
on
or after the Interest Payment Date in September 2010, the Coupon Rate for
such
Distribution Period.
“
Investment
Company Event
”
means
the receipt by the Company and the Trust of an opinion of counsel experienced
in
such matters to the effect that, as a result of the occurrence of a change
in
law or regulation or written change (including any announced prospective
change)
in interpretation or application of law or regulation by any legislative
body,
court, governmental agency or regulatory authority, there is more than
an
insubstantial risk that the Trust is or, within 90 days of the date of
such
opinion will be considered an “investment company” that is required to be
registered under the Investment Company Act of 1940, as amended which change
or
prospective change becomes effective or would become effective, as the
case may
be, on or after the date of the issuance of the Debentures.
“
Liquidation
Amount
”
means
the stated amount of $1,000.00 per Trust Security.
“
Maturity
Date
”
means
September 15, 2035.
“
Officers’
Certificate
”
means a
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the Vice Chairman, the President, any Managing Director or any Vice President,
and by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 14.6 if and to the extent required by the
provisions of such Section.
“
Opinion
of Counsel
”
means
an opinion in writing signed by legal counsel, who may be an employee of
or
counsel to the Company, or may be other counsel reasonably satisfactory
to the
Trustee. Each such opinion shall include the statements provided for in
Section 14.6 if and to the extent required by the provisions of
such
Section.
“
OTS
”
means
the Office of Thrift Supervision and any successor federal agency that
is
primarily responsible for regulating the activities of savings and loan
holding
companies.
The
term
“
outstanding
,”
when
used with reference to Debentures, means, subject to the provisions of
Section 7.4, as of any particular time, all Debentures authenticated
and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except:
(a)
Debentures
theretofore canceled by the Trustee or the Authenticating Agent or delivered
to
the Trustee for cancellation;
(b)
Debentures,
or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or
with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying
agent);
provided
,
however
,
that,
if such Debentures, or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as provided in
Section 10.3 or provision satisfactory to the Trustee shall have
been made
for giving such notice; and
(c)
Debentures
paid pursuant to Section 2.6 or in lieu of or in substitution for
which
other Debentures shall have been authenticated and delivered pursuant to
the
terms of Section 2.6 unless proof satisfactory to the Company and
the
Trustee is presented that any such Debentures are held by bona fide holders
in
due course.
“
Person
”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“
Predecessor
Security
”
of any
particular Debenture means every previous Debenture evidencing all or a
portion
of the same debt as that evidenced by such particular Debenture; and, for
purposes of this definition, any Debenture authenticated and delivered
under
Section 2.6 in lieu of a lost, destroyed or stolen Debenture shall
be
deemed to evidence the same debt as the lost, destroyed or stolen
Debenture.
“
Primary
Treasury Dealer
”
means
either a nationally recognized primary United States Government securities
dealer or an entity of recognized standing in matters pertaining to the
quotation of treasury securities that is reasonably acceptable to the Company
and the Trustee.
“
Principal
Office of the Trustee
,”
or
other similar term, means the office of the Trustee, at which at any particular
time its corporate trust business shall be principally administered, which
at
the time of the execution of this Indenture shall be Rodney Square North,
1100
North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate
Trust
Administration.
“
Quotation
Agent
”
means a
designee of the Institutional Trustee who shall be a Primary Treasury
Dealer.
“
Redemption
Date
”
has the
meaning set forth in Section 10.1.
“
Redemption
Price
”
means
100% of the principal amount of the Debentures being redeemed, plus accrued
and
unpaid interest (including any Additional Interest) on such Debentures
to the
Redemption Date.
“
Reference
Treasury Dealer
”
means
(i) the Quotation Agent and (ii) any other Primary Treasury Dealer selected
by
the Trustee after consultation with the Company.
“
Reference
Treasury Dealer Quotations
”
means,
with respect to each Reference Treasury Dealer and any Redemption Date,
the
average, as determined by the Quotation Agent, of the bid and asked prices
for
the Comparable Treasury Issue (expressed in each case as a percentage of
its
principal amount) quoted in writing to the Quotation Agent by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business
Day
preceding such Redemption Date.
“
Responsible
Officer
”
means,
with respect to the Trustee, any officer within the Principal Office of
the
Trustee, including any vice-president, any assistant vice-president, any
secretary, any assistant secretary, the treasurer, any assistant treasurer,
any
trust officer or other officer of the Principal Trust Office of the Trustee
customarily performing functions similar to those performed by any of the
above
designated officers and also means, with respect to a particular corporate
trust
matter, any other officer to whom such matter is referred because of that
officer’s knowledge of and familiarity with the particular subject.
“
Securities
Act
”
means
the Securities Act of 1933, as amended from time to time or any successor
legislation.
“
Securityholder
,”“holder
of Debentures,” or other similar terms, means any Person in whose name at the
time a particular Debenture is registered on the register kept by the Company
or
the Trustee for that purpose in accordance with the terms hereof.
“
Senior
Indebtedness
”
means,
with respect to the Company, (i) the principal, premium, if any,
and
interest in respect of (A) indebtedness of the Company for all borrowed
and
purchased money and (B) indebtedness evidenced by securities, debentures,
notes, bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations
of the
Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the
Company
under any title retention agreement; (iv) all obligations of the
Company
for the reimbursement of any letter of credit, any banker’s acceptance, any
security purchase facility, any repurchase agreement or similar arrangement,
any
interest rate swap, any other hedging arrangement, any obligation under
options
or any similar credit or other transaction; (v) all obligations
of the
Company associated with derivative products such as interest and foreign
exchange rate contracts, commodity contracts, and similar arrangements;
(vi) all obligations of the type referred to in clauses (i)
through
(v) above of other Persons for the payment of which the Company is responsible
or liable as obligor, guarantor or otherwise including, without limitation,
similar obligations arising from off-balance sheet guarantees and direct
credit
substitutes; and (vii) all obligations of the type referred to in
clauses (i) through (vi) above of other Persons secured by any lien
on any
property or asset of the Company (whether or not such obligation is assumed
by
the Company), whether incurred on or prior to the date of this Indenture
or
thereafter incurred. Notwithstanding the foregoing, “Senior Indebtedness” shall
not include (1) any Additional Junior Indebtedness, (2) Debentures
issued pursuant to this Indenture and guarantees in respect of such Debentures,
(3) trade accounts payable of the Company arising in the ordinary
course of
business (such trade accounts payable being
pari
passu
in right
of payment to the Debentures), or (4) obligations with respect to
which
(a) in the instrument creating or evidencing the same or pursuant
to which
the same is outstanding, it is provided that such obligations are
pari
passu
,
junior
or otherwise not superior in right of payment to the Debentures and (b) the
Company, prior to the issuance thereof, has notified (and, if then required
under the applicable guidelines of the regulating entity, has received
approval
from) the Federal Reserve (if the Company is a bank holding company) or
the OTS
(if the Company is a savings and loan holding company). Senior Indebtedness
shall continue to be Senior Indebtedness and be entitled to the subordination
provisions irrespective of any amendment, modification or waiver of any
term of
such Senior Indebtedness.
“
Special
Event
”
means
any of a Capital Treatment Event, an Investment Company Event or a Tax
Event.
“
Special
Redemption Date
”
has the
meaning set forth in Section 10.2.
“
Special
Redemption Price
”
means
(a) if the Special Redemption Date occurs before the Interest Payment
Date
in September 2010, the greater of (i) 107.5% of the principal amount
of the
Debentures, plus accrued and unpaid interest (including Additional Interest)
on
the Debentures to the Special Redemption Date, or (ii) as determined
by the
Quotation Agent, (A) the sum of the present values of the scheduled
payments of principal and interest on the Debentures during the Fixed Rate
Period Remaining Life of the Debentures (assuming the Debentures matured
on the
Interest Payment Date in September 2010) discounted to the Special Redemption
Date on a quarterly basis (assuming a 360-day year consisting of twelve
30-day
months) at the Treasury Rate, plus (B) accrued and unpaid interest
(including Additional Interest) on the Debentures to such Special Redemption
Date, or (b) if the Special Redemption Date occurs on or after the
Interest
Payment Date in September 2010, 100% of the principal amount of the Debentures
being redeemed, plus accrued and unpaid interest (including any Additional
Interest) on such Debentures to the Special Redemption Date.
“
Subsidiary
”
means
with respect to any Person, (i) any corporation at least a majority
of the
outstanding voting stock of which is owned, directly or indirectly, by
such
Person or by one or more of its Subsidiaries, or by such Person and one
or more
of its Subsidiaries, (ii) any general partnership, joint venture
or similar
entity, at least a majority of the outstanding partnership or similar interests
of which shall at the time be owned by such Person, or by one or more of
its
Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition,
“voting
stock” means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting
power
for the election of a majority of the directors (or the equivalent) of
such
Person, other than shares, interests, participations or other equivalents
having
such power only by reason of the occurrence of a contingency.
“
Tax
Event
”
means
the receipt by the Company and the Trust of an opinion of counsel experienced
in
such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or taxing
authority
thereof or therein, or as a result of any official administrative pronouncement
(including any private letter ruling, technical advice memorandum, field
service
advice, regulatory procedure, notice or announcement, including any notice
or
announcement of intent to adopt such procedures or regulations) (an
“
Administrative
Action
”)
or
judicial decision interpreting or applying such laws or regulations, regardless
of whether such Administrative Action or judicial decision is issued to
or in
connection with a proceeding involving the Company or the Trust and whether
or
not subject to review or appeal, which amendment, clarification, change,
Administrative Action or decision is enacted, promulgated or announced,
in each
case on or after the date of original issuance of the Debentures, there
is more
than an insubstantial risk that: (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures;
(ii) interest payable by the Company on the Debentures is not, or
within
90 days of the date of such opinion, will not be, deductible by
the
Company, in whole or in part, for United States federal income tax purposes;
or
(iii) the Trust is, or will be within 90 days of the date
of such
opinion, subject to more than a de minimis amount of other taxes, duties
or
other governmental charges.
“
3-Month
LIBOR
”
has the
meaning set forth in Section 2.10.
“
Telerate
Page 3750
”
has the
meaning set forth in Section 2.10.
“
Treasury
Rate
”
means
(i) the yield, under the heading which represents the average for the week
immediately prior to the date of calculation, appearing in the most recently
published statistical release designated H.15 (519) or any successor publication
which is published weekly by the Federal Reserve and which establishes
yields on
actively traded United States Treasury securities adjusted to constant
maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Fixed Rate Period Remaining Life (if no maturity is within three
months
before or after the Fixed Rate Period Remaining Life, yields for the two
published maturities most closely corresponding to the Fixed Rate Period
Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to
the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield
to
maturity of the Comparable Treasury Issue, calculated using a price for
the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Special Redemption Date.
The
Treasury Rate shall be calculated by the Quotation Agent on the third Business
Day preceding the Special Redemption Date.
“
Trust
”
shall
mean WT Capital Trust I, a Delaware statutory trust, or any
other
similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debentures under this Indenture, of which
the
Company is the sponsor.
“
Trust
Securities
”
means
Common Securities and Capital Securities of the Trust.
“
Trustee
”
means
Wilmington Trust Company, and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns as Trustee
hereunder.
ARTICLE
II.
DEBENTURES
Section
2.1.
Authentication
and Dating.
Upon
the
execution and delivery of this Indenture, or from time to time thereafter,
Debentures in an aggregate principal amount not in excess of $8,248,000.00
may
be executed and delivered by the Company to the Trustee for authentication,
and
the Trustee, upon receipt of a written authentication order from the Company,
shall thereupon authenticate and make available for delivery said Debentures
to
or upon the written order of the Company, signed by its Chairman of the
Board of
Directors, Chief Executive Officer, Vice Chairman, the President, one of
its
Managing Directors or one of its Vice Presidents without any further action
by
the Company hereunder. Notwithstanding anything to the contrary contained
herein, the Trustee shall be fully protected in relying upon the aforementioned
authentication order and written order in authenticating and delivering
said
Debentures. In authenticating such Debentures, and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be
fully protected in relying upon:
(a)
a
copy of
any Board Resolution or Board Resolutions relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such resolution,
in each
case certified by the Secretary or an Assistant Secretary of the Company,
as the
case may be; and
(b)
an
Opinion of Counsel prepared in accordance with Section 14.6 which
shall
also state:
(1)
that
such
Debentures, when authenticated and delivered by the Trustee and issued
by the
Company in each case in the manner and subject to any conditions specified
in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, subject to or limited by applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, moratorium and other statutory
or
decisional
laws relating to or affecting creditors’ rights or the reorganization of
financial institutions (including, without limitation, preference and
fraudulent
conveyance or transfer laws), heretofore or hereafter enacted or in effect,
affecting the rights of creditors generally; and
(2)
that
all
laws and requirements in respect of the execution and delivery by the Company
of
the Debentures have been complied with and that authentication and delivery
of
the Debentures by the Trustee will not violate the terms of this
Indenture.
The
Trustee shall have the right to decline to authenticate and deliver any
Debentures under this Section if the Trustee, being advised in writing
by
counsel, determines that such action may not lawfully be taken or if a
Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to existing
holders.
The
definitive Debentures shall be typed, printed, lithographed or engraved
on steel
engraved borders or may be produced in any other manner, all as determined
by
the officers executing such Debentures, as evidenced by their execution
of such
Debentures.
Section
2.2.
Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate of authentication on all Debentures shall be in
substantially the following form:
This
is
one of the Debentures referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY, as Trustee
By
Authorized
Signer
Section
2.3.
Form
and Denomination of Debentures.
The
Debentures shall be substantially in the form of Exhibit A attached hereto.
The
Debentures shall be in registered, certificated form without coupons and
in
minimum denominations of $100,000.00 and any multiple of $1,000.00 in excess
thereof. Any attempted transfer of the Debentures in a block having an
aggregate
principal amount of less than $100,000.00 shall be deemed to be void and
of no
legal effect whatsoever. Any such purported transferee shall be deemed
not to be
a holder of such Debentures for any purpose, including, but not limited
to the
receipt of payments on such Debentures, and such purported transferee shall
be
deemed to have no interest whatsoever in such Debentures. The Debentures
shall
be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers executing the same may determine
with
the approval of the Trustee as evidenced by the execution and authentication
thereof.
Section
2.4.
Execution
of Debentures.
The
Debentures shall be signed in the name and on behalf of the Company by
the
manual or facsimile signature of its Chairman of the Board of Directors,
Chief
Executive Officer, Vice Chairman, President, one of its Managing Directors
or
one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents.
Only such Debentures as shall bear thereon a certificate of authentication
substantially in the form herein before recited, executed by the Trustee
or the
Authenticating Agent by the manual signature of an authorized signer, shall
be
entitled to the benefits of this Indenture or be valid or obligatory for
any
purpose. Such certificate by the Trustee or the Authenticating Agent upon
any
Debenture executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In
case
any officer of the Company who shall have signed any of the Debentures
shall
cease to be such officer before the Debentures so signed shall have been
authenticated and delivered by the Trustee or
the
Authenticating Agent, or disposed of by the Company, such Debentures
nevertheless may be authenticated and delivered or disposed of as though
the
Person who signed such Debentures had not ceased to be such officer of
the
Company; and any Debenture may be signed on behalf of the Company by
such
Persons as, at the actual date of the execution of such Debenture, shall
be the
proper officers of the Company, although at the date of the execution
of this
Indenture any such person was not such an officer.
Every
Debenture shall be dated the date of its authentication.
Section
2.5.
Exchange
and Registration of Transfer of Debentures.
The
Company shall cause to be kept, at the office or agency maintained for
the
purpose of registration of transfer and for exchange as provided in
Section 3.2, a register (the “
Debenture
Register
”)
for
the Debentures issued hereunder in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration and
transfer
of all Debentures as in this Article II provided. The Debenture
Register
shall be in written form or in any other form capable of being converted
into
written form within a reasonable time.
Debentures
to be exchanged may be surrendered at the Principal Office of the Trustee
or at
any office or agency to be maintained by the Company for such purpose as
provided in Section 3.2, and the Company shall execute, the Company
or the
Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debenture
or Debentures which the Securityholder making the exchange shall be entitled
to
receive. Upon due presentment for registration of transfer of any Debenture
at
the Principal Office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.2, the Company
shall
execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery
in the
name of the transferee or transferees a new Debenture for a like aggregate
principal amount. Registration or registration of transfer of any Debenture
by
the Trustee or by any agent of the Company appointed pursuant to
Section 3.2, and delivery of such Debenture, shall be deemed to
complete
the registration or registration of transfer of such Debenture.
All
Debentures presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating
Agent)
be duly endorsed by, or be accompanied by a written instrument or instruments
of
transfer in form satisfactory to the Company and the Trustee or the
Authenticating Agent duly executed by the holder or his attorney duly authorized
in writing.
No
service charge shall be made for any exchange or registration of transfer
of
Debentures, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may
be
imposed in connection therewith.
The
Company or the Trustee shall not be required to exchange or register a
transfer
of any Debenture for a period of 15 days next preceding the date
of
selection of Debentures for redemption.
Notwithstanding
anything herein to the contrary, Debentures may not be transferred except
in
compliance with the restricted securities legend set forth below, unless
otherwise determined by the Company, upon the advice of counsel expert
in
securities law, in accordance with applicable law:
THIS
SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE
UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT
INSURANCE CORPORATION.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON
WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS
ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A,
(D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S
UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES
ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY
OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER
OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT
OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY
IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE WITH
RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND
HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN
WITHIN
THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF
AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
ASSETS OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406
OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN
A BLOCK
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE
DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
Section
2.6.
Mutilated,
Destroyed, Lost or Stolen Debentures.
In
case
any Debenture shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debenture bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture,
or in
lieu of and in substitution for the Debenture so destroyed, lost or stolen.
In
every case the applicant for a substituted Debenture shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to
save each of them harmless, and, in every case of destruction, loss or
theft,
the applicant shall also furnish to the Company and the Trustee evidence
to
their satisfaction of the destruction, loss or theft of such Debenture
and of
the ownership thereof.
The
Trustee may authenticate any such substituted Debenture and deliver the
same
upon the written request or authorization of any officer of the Company.
Upon
the issuance of any substituted Debenture, the Company may require the
payment
of a sum sufficient to cover any tax or other governmental charge that
may be
imposed in relation thereto and any other expenses connected therewith.
In case
any Debenture which has matured or is about to mature or has been called
for
redemption in full shall become mutilated or be destroyed, lost or stolen,
the
Company may, instead of issuing a substitute Debenture, pay or authorize
the
payment of the same (without surrender thereof except in the case of a
mutilated
Debenture) if the applicant for such payment shall furnish to the Company
and
the Trustee such security or indemnity as may be required by them to save
each
of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the destruction, loss
or theft
of such Debenture and of the ownership thereof.
Every
substituted Debenture issued pursuant to the provisions of this Section 2.6
by virtue of the fact that any such Debenture is destroyed, lost or stolen
shall
constitute an additional contractual obligation of the Company, whether
or not
the destroyed, lost or stolen Debenture shall be found at any time, and
shall be
entitled to all the benefits of this Indenture equally and proportionately
with
any and all other Debentures duly issued hereunder. All Debentures shall
be held
and owned upon the express condition that, to the extent permitted by applicable
law, the foregoing provisions are exclusive with respect to the replacement
or
payment of mutilated, destroyed, lost or stolen Debentures and shall preclude
any and all other rights or remedies notwithstanding any law or statute
existing
or hereafter enacted to the contrary with respect to the replacement or
payment
of negotiable instruments or other securities without their
surrender.
Section
2.7.
Temporary
Debentures.
Pending
the preparation of definitive Debentures, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debentures
that are typed, printed or lithographed. Temporary Debentures shall be
issuable
in any authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued but with such omissions, insertions
and variations as may be appropriate for temporary Debentures, all as may
be
determined by the Company. Every such temporary Debenture shall be executed
by
the Company and be authenticated by the Trustee upon the same conditions
and in
substantially the same manner, and with the same effect, as the definitive
Debentures. Without unreasonable delay the Company will execute and deliver
to
the Trustee or the Authenticating Agent definitive
Debentures
and thereupon any or all temporary Debentures may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee or at
any
office or agency maintained by the Company for such purpose as provided
in
Section 3.2, and the Trustee or the Authenticating Agent shall
authenticate
and make available for delivery in exchange for such temporary Debentures
a like
aggregate principal amount of such definitive Debentures. Such exchange
shall be
made by the Company at its own expense and without any charge therefor
except
that in case of any such exchange involving a registration of transfer
the
Company may require payment of a sum sufficient to cover any tax, fee
or other
governmental charge that may be imposed in relation thereto. Until so
exchanged,
the temporary Debentures shall in all respects be entitled to the same
benefits
under this Indenture as definitive Debentures authenticated and delivered
hereunder.
Section
2.8.
Payment
of Interest and Additional Interest.
Interest
at the Interest Rate and any Additional Interest on any Debenture that
is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date for Debentures shall be paid to the Person in whose name said Debenture
(or
one or more Predecessor Securities) is registered at the close of business
on
the regular record date for such interest installment except that interest
and
any Additional Interest payable on the Maturity Date shall be paid to the
Person
to whom principal is paid.
Each
Debenture shall bear interest for the period beginning on (and including)
the
date of original issuance and ending on (but excluding) the Interest Payment
Date in September 2010 at a rate per annum of 5.965%, and shall bear interest
for each successive Distribution Period beginning on or after the Interest
Payment Date in September 2010 at a rate per annum equal to the 3-Month
LIBOR,
determined as described in Section 2.10, plus 1.45% (the “
Coupon
Rate
”),
applied to the principal amount thereof, until the principal thereof becomes
due
and payable, and on any overdue principal and to the extent that payment
of such
interest is enforceable under applicable law (without duplication) on any
overdue installment of interest (including Additional Interest) at the
Interest
Rate in effect for each applicable period compounded quarterly. Interest
shall
be payable (subject to any relevant Extension Period) quarterly in arrears
on
each Interest Payment Date with the first installment of interest to be
paid on
the Interest Payment Date in December 2005.
Any
interest on any Debenture, including Additional Interest, that is payable,
but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called “
Defaulted
Interest
”)
shall
forthwith cease to be payable to the registered holder on the relevant
regular
record date by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company to the Persons in whose names such Debentures
(or
their respective Predecessor Securities) are registered at the close of
business
on a special record date for the payment of such Defaulted Interest, which
shall
be fixed in the following manner: the Company shall notify the Trustee
in
writing at least 25 days prior to the date of the proposed payment of the
amount
of Defaulted Interest proposed to be paid on each such Debenture and the
date of
the proposed payment, and at the same time the Company shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to
the Trustee for such deposit prior to the date of the proposed payment,
such
money when deposited to be held in trust for the benefit of the Persons
entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which
shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense
of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage
prepaid,
to each Securityholder at its address as it appears in the Debenture Register,
not less than 10 days prior to such special record date. Notice of the
proposed
payment of such Defaulted Interest and the special record date therefor
having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons
in
whose
names such Debentures (or their respective Predecessor Securities) are
registered on such special record date and shall be no longer
payable.
The
Company may make payment of any Defaulted Interest on any Debentures in
any
other lawful manner after notice given by the Company to the Trustee of
the
proposed payment method;
provided
,
however
,
the
Trustee in its sole discretion deems such payment method to be
practical.
Any
interest (including Additional Interest) scheduled to become payable on
an
Interest Payment Date occurring during an Extension Period shall not be
Defaulted Interest and shall be payable on such other date as may be specified
in the terms of such Debentures.
The
term
“regular record date” as used in this Section shall mean the close of business
on the 15th Business Day preceding the applicable Interest Payment
Date.
Subject
to the foregoing provisions of this Section, each Debenture delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu
of any
other Debenture shall carry the rights to interest accrued and unpaid,
and to
accrue, that were carried by such other Debenture.
Section
2.9.
Cancellation
of Debentures Paid, etc.
All
Debentures surrendered for the purpose of payment, redemption, exchange
or
registration of transfer, shall, if surrendered to the Company or any paying
agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debentures shall be issued in lieu thereof except
as
expressly permitted by any of the provisions of this Indenture. All Debentures
canceled by any Authenticating Agent shall be delivered to the Trustee.
The
Trustee shall destroy all canceled Debentures unless the Company otherwise
directs the Trustee in writing. If the Company shall acquire any of the
Debentures, however, such acquisition shall not operate as a redemption
or
satisfaction of the indebtedness represented by such Debentures unless
and until
the same are surrendered to the Trustee for cancellation.
Section
2.10.
Computation
of Interest.
The
amount of interest payable (i) for any Distribution Period commencing
on or
after the date of original issuance but before the Interest Payment Date
in
September 2010 will be computed on the basis of a 360-day year of twelve
30-day
months, and (ii) for the Distribution Period commencing on the Interest
Payment Date in September 2010 and each succeeding Distribution Period
will be
calculated by applying the Interest Rate to the principal amount outstanding
at
the commencement of the Distribution Period on the basis of the actual
number of
days in the Distribution Period concerned divided by 360. All percentages
resulting from any calculations on the Debentures will be rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent
(with
one-half cent being rounded upward)).
(a)
“
3-Month
LIBOR
”
means
the London interbank offered interest rate for three-month, U.S. dollar
deposits
determined by the Trustee in the following order of priority:
(1)
the
rate
(expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date (as defined
below). “Telerate Page 3750” means the display designated as
“Page 3750” on the Moneyline Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services
as may
be nominated by the British Bankers’ Association as the information vendor for
the purpose of displaying London interbank offered rates for U.S. dollar
deposits;
(2)
if
such
rate cannot be identified on the related Determination Date, the Trustee
will
request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations;
(3)
if
fewer
than two such quotations are provided as requested in clause (2)
above, the
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on
such
Determination Date. If at least two such quotations are provided, 3-Month
LIBOR
will be the arithmetic mean of such quotations; and
(4)
if
fewer
than two such quotations are provided as requested in clause (3)
above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution
Period.
If
the
rate for U.S. dollar deposits having a three-month maturity that initially
appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on the
related Determination Date is superseded on the Telerate Page 3750
by a
corrected rate by 12:00 noon (London time) on such Determination
Date, then
the corrected rate as so substituted on the applicable page will be the
applicable 3-Month LIBOR for such Determination Date.
(b)
The
Interest Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified
by
United States law.
(c)
“
Determination
Date
”
means
the date that is two London Banking Days (i.e., a business day in which
dealings
in deposits in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon Rate is
being
determined.
(d)
The
Trustee shall notify the Company, the Institutional Trustee and any securities
exchange or interdealer quotation system on which the Capital Securities
are
listed, of the Coupon Rate and the Determination Date for each Distribution
Period, in each case as soon as practicable after the determination thereof
but
in no event later than the thirtieth (30th) day of the relevant Distribution
Period. Failure to notify the Company, the Institutional Trustee or any
securities exchange or interdealer quotation system, or any defect in said
notice, shall not affect the obligation of the Company to make payment
on the
Debentures at the applicable Coupon Rate. Any error in the calculation
of the
Coupon Rate by the Trustee may be corrected at any time by notice delivered
as
above provided. Upon the request of a holder of a Debenture, the Trustee
shall
provide the Coupon Rate then in effect and, if determined, the Coupon Rate
for
the next Distribution Period.
(e)
Subject
to the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions relating
to the
payment and calculation of interest on the Debentures and distributions
on the
Capital Securities by the Trustee or the Institutional Trustee will (in
the
absence of willful default, bad faith and manifest error) be final, conclusive
and binding on the Trust, the Company and all of the holders of the Debentures
and the Capital Securities, and no liability shall (in the absence of willful
default, bad faith or manifest error) attach to the Trustee or the Institutional
Trustee in connection with the exercise or non-exercise by either of them
or
their respective powers, duties and discretion.
Section
2.11.
Extension
of Interest Payment Period.
So
long
as no Acceleration Event of Default has occurred and is continuing, the
Company
shall have the right, from time to time, and without
causing
an Event of Default, to defer payments of interest on the Debentures
by
extending the interest payment period on the Debentures at any time and
from
time to time during the term of the Debentures, for up to 20 consecutive
quarterly periods (each such extended interest payment period, an “
Extension
Period
”),
during which Extension Period no interest (including Additional Interest)
shall
be due and payable (except any Additional Sums that may be due and payable).
No
Extension Period may end on a date other than an Interest Payment Date.
During
an Extension Period, interest will continue to accrue on the Debentures,
and
interest on such accrued interest will accrue at an annual rate equal
to the
Interest Rate in effect for such Extension Period, compounded quarterly
from the
date such interest would have been payable were it not for the Extension
Period,
to the extent permitted by law (such interest referred to herein as
“
Additional
Interest
”).
At
the end of any such Extension Period the Company shall pay all interest
then
accrued and unpaid on the Debentures (together with Additional Interest
thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date;
provided
further
,
however
,
that
during any such Extension Period, the Company shall not and shall not
permit any
Affiliate to (i) declare or pay any dividends or distributions
on, or
redeem, purchase, acquire, or make a liquidation payment with respect
to, any of
the Company’s or such Affiliate’s capital stock (other than payments of
dividends or distributions to the Company) or make any guarantee payments
with
respect to the foregoing or (ii) make any payment of principal
of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company or any Affiliate that rank
pari
passu
in all
respects with or junior in interest to the Debentures (other than, with
respect
to clauses (i) or (ii) above, (a) repurchases, redemptions or
other
acquisitions of shares of capital stock of the Company in connection
with any
employment contract, benefit plan or other similar arrangement with or
for the
benefit of one or more employees, officers, directors or consultants,
in
connection with a dividend reinvestment or stockholder stock purchase
plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration
in an
acquisition transaction entered into prior to the applicable Extension
Period,
(b) as a result of any exchange or conversion of any class or
series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or series
of the Company’s indebtedness for any class or series of the Company’s capital
stock, (c) the purchase of fractional interests in shares of the
Company’s
capital stock pursuant to the conversion or exchange provisions of such
capital
stock or the security being converted or exchanged, (d) any declaration
of
a dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend
in
the form of stock, warrants, options or other rights where the dividend
stock or
the stock issuable upon exercise of such warrants, options or other rights
is
the same stock as that on which the dividend is being paid or ranks
pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares
issued
in connection therewith, or (f) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the Company
may
further extend such period, provided that such period together with all
such
previous and further consecutive extensions thereof shall not exceed
20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon
the termination of any Extension Period and upon the payment of all accrued
and
unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest
or
Additional Interest shall be due and payable during an Extension Period,
except
at the end thereof, but each installment of interest that would otherwise
have
been due and payable during such Extension Period shall bear Additional
Interest
to the extent permitted by applicable law. The Company must give the
Trustee
notice of its election to begin or extend an Extension Period by the
close of
business at least 15 Business Days prior to the Interest Payment Date
with
respect to which interest on the Debentures would have been payable except
for
the election to begin or extend such Extension Period. The Trustee shall
give
notice of the Company’s election to begin a new Extension Period to the
Securityholders.
Section
2.12.
CUSIP
Numbers.
The
Company in issuing the Debentures may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption
as a convenience to Securityholders; provided, however, that any such
notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of
a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not
be affected
by any defect in or omission of such numbers. The Company will promptly
notify
the Trustee in writing of any change in the CUSIP numbers.
ARTICLE
III.
PARTICULAR
COVENANTS OF THE COMPANY
Section
3.1.
Payment
of Principal, Premium and Interest; Agreed Treatment of the
Debentures
.
(a)
The
Company covenants and agrees that it will duly and punctually pay or cause
to be
paid the principal of and premium, if any, and interest and any Additional
Interest and other payments on the Debentures at the place, at the respective
times and in the manner provided in this Indenture and the Debentures.
Each
installment of interest on the Debentures may be paid (i) by mailing
checks
for such interest payable to the order of the holders of Debentures entitled
thereto as they appear on the registry books of the Company if a request
for a
wire transfer has not been received by the Company or (ii) by wire
transfer
to any account with a banking institution located in the United States
designated in writing by such Person to the paying agent no later than
the
related record date. Notwithstanding the foregoing, so long as the holder
of
this Debenture is the Institutional Trustee, the payment of the principal
of and
interest on this Debenture will be made in immediately available funds
at such
place and to such account as may be designated by the Institutional
Trustee.
(b)
The
Company will treat the Debentures as indebtedness, and the amounts payable
in
respect of the principal amount of such Debentures as interest, for all
United
States federal income tax purposes. All payments in respect of such Debentures
will be made free and clear of United States withholding tax to any beneficial
owner thereof that has provided an Internal Revenue Service Form W8 BEN
(or any
substitute or successor form) establishing its non-United States status
for
United States federal income tax purposes.
(c)
As
of the
date of this Indenture, the Company has no present intention to exercise
its
right under Section 2.11 to defer payments of interest on the Debentures
by
commencing an Extension Period.
(d)
As
of the
date of this Indenture, the Company believes that the likelihood that it
would
exercise its right under Section 2.11 to defer payments of interest on
the
Debentures by commencing an Extension Period at any time during which the
Debentures are outstanding is remote because of the restrictions that would
be
imposed on the Company’s ability to declare or pay dividends or distributions
on, or to redeem, purchase or make a liquidation payment with respect to,
any of
its outstanding equity and on the Company’s ability to make any payments of
principal of or interest on, or repurchase or redeem, any of its debt securities
that rank
pari
passu
in all
respects with (or junior in interest to) the Debentures.
Section
3.2.
Offices
for Notices and Payments, etc.
So
long
as any of the Debentures remain outstanding, the Company will maintain
in
Wilmington, Delaware, an office or agency where the Debentures may be presented
for payment, an office or agency where the Debentures may be presented
for
registration of transfer and for exchange as in this Indenture provided
and an
office or agency where notices and demands to or upon the Company in respect
of
the Debentures or of this Indenture may be served. The Company will give
to the
Trustee written notice of the location of any such office or agency and
of any
change of location thereof. Until otherwise designated from time to time
by the
Company in a notice to the Trustee, or specified as contemplated by Section
2.5,
such office or agency for all of the
above
purposes shall be the office or agency of the Trustee. In case the Company
shall
fail to maintain any such office or agency in Wilmington, Delaware, or
shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served
at the
Principal Office of the Trustee.
In
addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside Wilmington, Delaware,
where
the Debentures may be presented for registration of transfer and for exchange
in
the manner provided in this Indenture, and the Company may from time to
time
rescind such designation, as the Company may deem desirable or expedient;
provided
,
however
,
that no
such designation or rescission shall in any manner relieve the Company
of its
obligation to maintain any such office or agency in Wilmington, Delaware,
for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.
Section
3.3.
Appointments
to Fill Vacancies in Trustee’s Office.
The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee,
so that
there shall at all times be a Trustee hereunder.
Section
3.4.
Provision
as to Paying Agent
.
(a)
If
the
Company shall appoint a paying agent other than the Trustee, it will cause
such
paying agent to execute and deliver to the Trustee an instrument in which
such
agent shall agree with the Trustee, subject to the provision of this
Section 3.4,
(1)
that
it
will hold all sums held by it as such agent for the payment of the principal
of
and premium, if any, or interest, if any, on the Debentures (whether such
sums
have been paid to it by the Company or by any other obligor on the Debentures)
in trust for the benefit of the holders of the Debentures;
(2)
that
it
will give the Trustee prompt written notice of any failure by the Company
(or by
any other obligor on the Debentures) to make any payment of the principal
of and
premium, if any, or interest, if any, on the Debentures when the same shall
be
due and payable; and
(3)
that
it
will, at any time during the continuance of any Event of Default, upon
the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in
trust by such paying agent.
(b)
If
the
Company shall act as its own paying agent, it will, on or before each due
date
of the principal of and premium, if any, or interest or other payments,
if any,
on the Debentures, set aside, segregate and hold in trust for the benefit
of the
holders of the Debentures a sum sufficient to pay such principal, premium,
interest or other payments so becoming due and will notify the Trustee
in
writing of any failure to take such action and of any failure by the Company
(or
by any other obligor under the Debentures) to make any payment of the principal
of and premium, if any, or interest or other payments, if any, on the Debentures
when the same shall become due and payable.
Whenever
the Company shall have one or more paying agents for the Debentures, it
will, on
or prior to each due date of the principal of and premium, if any, or interest,
if any, on the Debentures, deposit with a paying agent a sum sufficient
to pay
the principal, premium, interest or other payments so becoming due, such
sum to
be held in trust for the benefit of the Persons entitled thereto and (unless
such paying agent is the Trustee) the Company shall promptly notify the
Trustee
in writing of its action or failure to act.
(c)
Anything
in this Section 3.4 to the contrary notwithstanding, the Company
may, at
any time, for the purpose of obtaining a satisfaction and discharge with
respect
to the Debentures, or for any other reason, pay, or direct any paying agent
to
pay to the Trustee all sums held in trust by the Company or any such paying
agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d)
Anything
in this Section 3.4 to the contrary notwithstanding, the agreement
to hold
sums in trust as provided in this Section 3.4 is subject to
Sections 12.3 and 12.4.
Section
3.5.
Certificate
to Trustee.
The
Company will deliver to the Trustee on or before 120 days after
the end of
each fiscal year, so long as Debentures are outstanding hereunder, a Certificate
stating that in the course of the performance by the signers of their duties
as
officers of the Company they would normally have knowledge of any default
during
such fiscal year by the Company in the performance of any covenants contained
herein, stating whether or not they have knowledge of any such default
and, if
so, specifying each such default of which the signers have knowledge and
the
nature and status thereof. A form of this Certificate is attached hereto
as
Exhibit B
.
Section
3.6.
Additional
Sums.
If
and
for so long as the Trust is the holder of all Debentures and the Trust
is
required to pay any additional taxes (including withholding taxes), duties,
assessments or other governmental charges as a result of a Tax Event, the
Company will pay such additional amounts (“
Additional
Sums
”)
on the
Debentures as shall be required so that the net amounts received and retained
by
the Trust after paying taxes (including withholding taxes), duties, assessments
or other governmental charges will be equal to the amounts the Trust would
have
received if no such taxes, duties, assessments or other governmental charges
had
been imposed. Whenever in this Indenture or the Debentures there is a reference
in any context to the payment of principal of or interest on the Debentures,
such mention shall be deemed to include mention of payments of the Additional
Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant
to the
provisions of this paragraph and express mention of the payment of Additional
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Sums in those provisions hereof where such express
mention
is not made;
provided
,
however
,
that
the deferral of the payment of interest during an Extension Period pursuant
to
Section 2.11 shall not defer the payment of any Additional Sums
that may be
due and payable.
Section
3.7.
Compliance
with Consolidation Provisions.
The
Company will not, while any of the Debentures remain outstanding, consolidate
with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions
of
Article XI hereof are complied with.
Section
3.8.
Limitation
on Dividends.
If
Debentures are initially issued to the Trust or a trustee of such Trust
in
connection with the issuance of Trust Securities by the Trust (regardless
of
whether Debentures continue to be held by such Trust) and (i) there
shall
have occurred and be continuing an Event of Default, (ii) the Company
shall
be in default with respect to its payment of any obligations under the
Capital
Securities Guarantee, or (iii) the Company shall have given notice
of its
election to defer payments of interest on the Debentures by extending the
interest payment period as provided herein and such period, or any extension
thereof, shall be continuing, then the Company shall not, and shall not
allow
any Affiliate of the Company to, (x) declare or pay any dividends
or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or its Affiliates’ capital
stock (other than payments of dividends or distributions to the Company)
or make
any guarantee payments with respect to the foregoing or (y) make
any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company or any Affiliate that rank
pari
passu
in all
respects with or junior in interest to the Debentures (other than, with
respect
to clauses (x) and (y) above, (1) repurchases, redemptions or other
acquisitions of shares of capital stock of
the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees,
officers,
directors or consultants, in connection with a dividend reinvestment
or
stockholder stock purchase plan or in connection with the issuance of
capital
stock of the Company (or securities convertible into or exercisable for
such
capital stock) as consideration in an acquisition transaction entered
into prior
to the applicable Extension Period, if any, (2) as a result of
any exchange
or conversion of any class or series of the Company’s capital stock (or any
capital stock of a subsidiary of the Company) for any class or series
of the
Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (3) the purchase of
fractional interests in shares of the Company’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security
being
converted or exchanged, (4) any declaration of a dividend in connection
with any stockholders’ rights plan, or the issuance of rights, stock or other
property under any stockholders’ rights plan, or the redemption or repurchase of
rights pursuant thereto, (5) any dividend in the form of stock,
warrants,
options or other rights where the dividend stock or the stock issuable
upon
exercise of such warrants, options or other rights is the same stock
as that on
which the dividend is being paid or ranks
pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares
issued
in connection therewith, or (6) payments under the Capital Securities
Guarantee).
Section
3.9.
Covenants
as to the Trust.
For
so
long as the Trust Securities remain outstanding, the Company shall maintain
100%
ownership of the Common Securities;
provided
,
however
,
that
any permitted successor of the Company under this Indenture may succeed
to the
Company’s ownership of such Common Securities. The Company, as owner of the
Common Securities, shall, except in connection with a distribution of Debentures
to the holders of Trust Securities in liquidation of the Trust, the redemption
of all of the Trust Securities or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, cause the Trust (a)
to
remain a statutory trust, (b) to otherwise continue to be classified
as a
grantor trust for United States federal income tax purposes, and (c) to
cause each holder of Trust Securities to be treated as owning an undivided
beneficial interest in the Debentures.
Section
3.10.
Additional
Junior Indebtedness
.
The
Company shall not, and it shall not cause or permit any Subsidiary of the
Company to, incur, issue or be obligated on any Additional Junior Indebtedness,
either directly or indirectly, by way of guarantee, suretyship or otherwise,
other than Additional Junior Indebtedness (i) that, by its terms,
is
expressly stated to be either junior and subordinate or
pari
passu
in all
respects to the Debentures, and (ii) of which the Company has notified
(and, if then required under the applicable guidelines of the regulating
entity,
has received approval from) the Federal Reserve, if the Company is a bank
holding company, or the OTS, if the Company is a savings and loan holding
company.
ARTICLE
IV.
SECURITYHOLDERS’
LISTS AND REPORTS
BY
THE COMPANY AND THE TRUSTEE
Section
4.1.
Securityholders’
Lists.
The
Company covenants and agrees that it will furnish or cause to be furnished
to
the Trustee:
(a)
on
each
regular record date for the Debentures, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Securityholders of
the
Debentures as of such record date; and
(b)
at
such
other times as the Trustee may request in writing, within 30 days
after the
receipt by the Company of any such request, a list of similar form and
content
as of a date not more than 15 days prior to the time such list is
furnished;
except
that no such lists need be furnished under this Section 4.1 so long
as the
Trustee is in possession thereof by reason of its acting as Debenture
registrar.
Section
4.2.
Preservation
and Disclosure of Lists
.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the holders of Debentures
(1) contained in the most recent list furnished to it as provided
in
Section 4.1 or (2) received by it in the capacity of Debentures
registrar (if so acting) hereunder. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b)
In
case
three or more holders of Debentures (hereinafter referred to as “applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof
that
each such applicant has owned a Debenture for a period of at least 6 months
preceding the date of such application, and such application states that
the
applicants desire to communicate with other holders of Debentures with
respect
to their rights under this Indenture or under such Debentures and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within 5 Business Days after
the
receipt of such application, at its election, either:
(1)
afford
such applicants access to the information preserved at the time by the
Trustee
in accordance with the provisions of subsection (a) of this
Section 4.2, or
(2)
inform
such applicants as to the approximate number of holders of Debentures whose
names and addresses appear in the information preserved at the time by
the
Trustee in accordance with the provisions of subsection (a) of this
Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified
in
such application.
If
the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to
each
Securityholder whose name and address appear in the information preserved
at the
time by the Trustee in accordance with the provisions of subsection (a)
of
this Section 4.2 a copy of the form of proxy or other communication
which
is specified in such request with reasonable promptness after a tender
to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days
after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable
law,
together with a copy of the material to be mailed, a written statement
to the
effect that, in the opinion of the Trustee, such mailing would be contrary
to
the best interests of the holders of all Debentures, as the case may be,
or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If said Commission, as permitted or required
by
applicable law, after opportunity for a hearing upon the objections specified
in
the written statement so filed, shall enter an order refusing to sustain
any of
such objections or if, after the entry of an order sustaining one or more
of
such objections, said Commission shall find, after notice and opportunity
for
hearing, that all the objections so sustained have been met and shall enter
an
order so declaring, the Trustee shall mail copies of such material to all
such
Securityholders with reasonable promptness after the entry of such order
and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c)
Each
and
every holder of Debentures, by receiving and holding the same, agrees with
the
Company and the Trustee that neither the Company nor the Trustee nor any
paying
agent shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Debentures
in
accordance with the provisions of subsection (b) of this Section 4.2,
regardless
of
the
source from which such information was derived, and that the Trustee
shall not
be held accountable by reason of mailing any material pursuant to a request
made
under said subsection (b).
ARTICLE
V.
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
UPON
AN EVENT OF DEFAULT
Section
5.1.
Events
of Default
.
“Event
of
Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary
or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a)
the
Company defaults in the payment of any interest upon any Debenture, including
any Additional Interest in respect thereof, following the nonpayment of
any such
interest for twenty or more consecutive Distribution Periods; or
(b)
the
Company defaults in the payment of all or any part of the principal of
(or
premium, if any, on) any Debentures as and when the same shall become due
and
payable either at maturity, upon redemption, by declaration of acceleration
or
otherwise; or
(c)
the
Company defaults in the performance of, or breaches, any of its covenants
or
agreements in this Indenture or in the terms of the Debentures established
as
contemplated in this Indenture (other than a covenant or agreement a default
in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail,
to the
Company by the Trustee or to the Company and the Trustee by the holders
of at
least 25% in aggregate principal amount of the outstanding Debentures,
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
(d)
a
court
of competent jurisdiction shall enter a decree or order for relief in respect
of
the Company in an involuntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or appointing
a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree or
order
shall remain unstayed and in effect for a period of 90 consecutive
days;
or
(e)
the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case
under
any such law, or shall consent to the appointment of or taking possession
by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property,
or
shall make any general assignment for the benefit of creditors, or shall
fail
generally to pay its debts as they become due; or
(f)
the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up
its
business or otherwise terminated its existence except in connection with
(i) the distribution of the Debentures to holders of such Trust
Securities
in liquidation of their interests in the Trust, (ii) the redemption
of all
of the outstanding Trust Securities or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the
Declaration.
If
an
Acceleration Event of Default occurs and is continuing with respect to
the
Debentures, then, and in each and every such case, unless the principal
of the
Debentures shall have already become due and payable, either the Trustee
or the
holders of not less than 25% in aggregate principal amount of the
Debentures
then outstanding hereunder, by notice in writing to the Company (and
to the
Trustee if given by Securityholders), may declare the entire principal
of the
Debentures and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due
and payable. If an Event of Default under Section 5.1(b) or (c)
occurs and
is continuing with respect to the Debentures, then, and in each and every
such
case, unless the principal of the Debentures shall have already become
due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then outstanding hereunder, by notice
in
writing to the Company (and to the Trustee if given by Securityholders),
may
proceed to remedy the default or breach thereunder by such appropriate
judicial
proceedings as the Trustee or such holders shall deem most effectual
to remedy
the defaulted covenant or enforce the provisions of this Indenture so
breached,
either by suit in equity or by action at law, for damages or
otherwise.
The
foregoing provisions, however, are subject to the condition that if, at
any time
after the principal of the Debentures shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys
due
shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all
matured installments of interest upon all the Debentures and the principal
of
and premium, if any, on the Debentures which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if
any, and
Additional Interest) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee
pursuant
to Section 6.6, if any, and (ii) all Events of Default under
this
Indenture, other than the non-payment of the principal of or premium, if
any, on
Debentures which shall have become due by acceleration, shall have been
cured,
waived or otherwise remedied as provided herein -- then and in every
such
case the holders of a majority in aggregate principal amount of the Debentures
then outstanding, by written notice to the Company and to the Trustee,
may waive
all defaults and rescind and annul such declaration and its consequences,
but no
such waiver or rescission and annulment shall extend to or shall affect
any
subsequent default or shall impair any right consequent thereon.
In
case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the
Trustee
and the holders of the Debentures shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers
of
the Company, the Trustee and the holders of the Debentures shall continue
as
though no such proceeding had been taken.
Section
5.2.
Payment
of Debentures on Default; Suit Therefor.
The
Company covenants that upon the occurrence of an Event of Default pursuant
to
Section 5.1(a) or (b) then, upon demand of the Trustee, the Company
will
pay to the Trustee, for the benefit of the holders of the Debentures the
whole
amount that then shall have become due and payable on all Debentures for
principal and premium, if any, or interest, or both, as the case may be,
with
Additional Interest accrued on the Debentures (to the extent that payment
of
such interest is enforceable under applicable law and, if the Debentures
are
held by the Trust or a trustee of such Trust, without duplication of any
other
amounts paid by the Trust or a trustee in respect thereof); and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and
expenses of collection, including a reasonable compensation to the Trustee,
its
agents, attorneys and counsel, and any other amounts due to the Trustee
under
Section 6.6. In case the Company shall fail forthwith to pay such
amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the collection of the sums so due and unpaid, and
may
prosecute any such action or proceeding to judgment or final decree, and
may
enforce any such judgment or final decree against the Company or any other
obligor on such Debentures and collect in the manner provided by law out
of the
property of the
Company
or any other obligor on such Debentures wherever situated the moneys
adjudged or
decreed to be payable.
In
case
there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debentures under Bankruptcy
Law, or
in case a receiver or trustee shall have been appointed for the property
of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debentures,
or to
the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due
and
payable as therein expressed or by declaration of acceleration or otherwise
and
irrespective of whether the Trustee shall have made any demand pursuant
to the
provisions of this Section 5.2, shall be entitled and empowered,
by
intervention in such proceedings or otherwise,
|
|
(i)
|
to
file and prove a claim or claims for the whole amount of principal
and
interest owing and unpaid in respect of the
Debentures,
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|
|
(ii)
|
in
case of any judicial proceedings, to file such proofs of claim
and other
papers or documents as may be necessary or advisable in order
to have the
claims of the Trustee (including any claim for reasonable compensation
to
the Trustee and each predecessor Trustee, and their respective
agents,
attorneys and counsel, and for reimbursement of all other amounts
due to
the Trustee under Section 6.6), and of the Securityholders
allowed in
such judicial proceedings relative to the Company or any other
obligor on
the Debentures, or to the creditors or property of the Company
or such
other obligor, unless prohibited by applicable law and regulations,
to
vote on behalf of the holders of the Debentures in any election
of a
trustee or a standby trustee in arrangement, reorganization,
liquidation
or other bankruptcy or insolvency proceedings or Person performing
similar
functions in comparable proceedings,
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(iii)
|
to
collect and receive any moneys or other property payable or deliverable
on
any such claims, and
|
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(iv)
|
to
distribute the same after the deduction of its charges and
expenses.
|
Any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the
Trustee,
and, in the event that the Trustee shall consent to the making of such
payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.6.
Nothing
herein contained shall be construed to authorize the Trustee to authorize
or
consent to or accept or adopt on behalf of any Securityholder any plan
of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any holder thereof or to authorize the Trustee to vote
in
respect of the claim of any Securityholder in any such proceeding.
All
rights of action and of asserting claims under this Indenture, or under
any of
the Debentures, may be enforced by the Trustee without the possession of
any of
the Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of
the
Debentures.
In
any
proceedings brought by the Trustee (and also any proceedings involving
the
interpretation of any provision of this Indenture to which the Trustee
shall be
a party), the Trustee shall be held to
represent
all the holders of the Debentures, and it shall not be necessary to make
any
holders of the Debentures parties to any such proceedings.
Section
5.3.
Application
of Moneys Collected by Trustee.
Any
moneys collected by the Trustee pursuant to this Article V shall
be applied
in the following order, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Debentures
in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
First:
To
the payment of costs and expenses incurred by, and reasonable fees of,
the
Trustee, its agents, attorneys and counsel, and of all other amounts due
to the
Trustee under Section 6.6;
Second:
To the payment of all Senior Indebtedness of the Company if and to the
extent
required by Article XV;
Third:
To
the payment of the amounts then due and unpaid upon Debentures for principal
(and premium, if any), and interest on the Debentures, in respect of which
or
for the benefit of which money has been collected, ratably, without preference
or priority of any kind, according to the amounts due on such Debentures
(including Additional Interest); and
Fourth:
The balance, if any, to the Company.
Section
5.4.
Proceedings
by Securityholders.
No
holder
of any Debenture shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall
have
given to the Trustee written notice of an Event of Default with respect
to the
Debentures and unless the holders of not less than 25% in aggregate principal
amount of the Debentures then outstanding shall have given the Trustee
a written
request to institute such action, suit or proceeding and shall have offered
to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action, suit or proceeding.
Notwithstanding
any other provisions in this Indenture, however, the right of any holder
of any
Debenture to receive payment of the principal of, premium, if any, and
interest,
on such Debenture when due, or to institute suit for the enforcement of
any such
payment, shall not be impaired or affected without the consent of such
holder
and by accepting a Debenture hereunder it is expressly understood, intended
and
covenanted by the taker and holder of every Debenture with every other
such
taker and holder and the Trustee, that no one or more holders of Debentures
shall have any right in any manner whatsoever by virtue or by availing
itself of
any provision of this Indenture to affect, disturb or prejudice the rights
of
the holders of any other Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under
this
Indenture, except in the manner herein provided and for the equal, ratable
and
common benefit of all holders of Debentures. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the
Trustee
shall be entitled to such relief as can be given either at law or in
equity.
Section
5.5.
Proceedings
by Trustee.
In
case
of an Event of Default hereunder the Trustee may in its discretion proceed
to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to
protect and enforce any of such rights, either by suit in equity or by
action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or
in aid
of the exercise of any power granted in this Indenture, or to enforce any
other
legal or equitable right vested in the Trustee by this Indenture or by
law.
Section
5.6.
Remedies
Cumulative and Continuing; Delay or Omission Not a Waiver.
Except
as
otherwise provided in Section 2.6, all powers and remedies given
by this
Article V to the Trustee or to the Securityholders shall, to the
extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and
remedies available to the Trustee or the holders of the Debentures, by
judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Debentures, and no delay or omission of the Trustee
or of
any holder of any of the Debentures to exercise any right, remedy or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall
impair any such right, remedy or power, or shall be construed to be a waiver
of
any such default or an acquiescence therein; and, subject to the provisions
of
Section 5.4, every power and remedy given by this Article V
or by law
to the Trustee or to the Securityholders may be exercised from time to
time, and
as often as shall be deemed expedient, by the Trustee (in accordance with
its
duties under Section 6.1) or by the Securityholders.
Section
5.7.
Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders.
The
holders of a majority in aggregate principal amount of the Debentures affected
(voting as one class) at the time outstanding shall have the right to direct
the
time, method, and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising any trust or power conferred on the Trustee
with
respect to such Debentures;
provided
,
however
,
that
(subject to the provisions of Section 6.1) the Trustee shall have
the right
to decline to follow any such direction if the Trustee shall determine
that the
action so directed would be unjustly prejudicial to the holders not taking
part
in such direction or if the Trustee being advised by counsel determines
that the
action or proceeding so directed may not lawfully be taken or if a Responsible
Officer of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability.
The
holders of a majority in aggregate principal amount of the Debentures at
the
time outstanding may on behalf of the holders of all of the Debentures
waive (or
modify any previously granted waiver of) any past default or Event of Default,
and its consequences, except a default (a) in the payment of principal
of,
premium, if any, or interest on any of the Debentures, (b) in respect
of
covenants or provisions hereof which cannot be modified or amended without
the
consent of the holder of each Debenture affected, or (c) in respect
of the
covenants contained in Section 3.9;
provided
,
however
,
that if
the Debentures are held by the Trust or a trustee of such trust, such waiver
or
modification to such waiver shall not be effective until the holders of
a
majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver,
provided
,
further
,
that if
the consent of the holder of each outstanding Debenture is required, such
waiver
shall not be effective until each holder of the Trust Securities of the
Trust
shall have consented to such waiver. Upon any such waiver, the default
covered
thereby shall be deemed to be cured for all purposes of this Indenture
and the
Company, the Trustee and the holders of the Debentures shall be restored
to
their former positions and rights hereunder, respectively; but no such
waiver
shall extend to any subsequent or other default or Event of Default or
impair
any right consequent thereon. Whenever any default or Event of Default
hereunder
shall have been waived as permitted by this Section, said default or Event
of
Default shall for all purposes of the Debentures and this Indenture be
deemed to
have been cured and to be not continuing.
Section
5.8.
Notice
of Defaults.
The
Trustee shall, within 90 days after the actual knowledge by a Responsible
Officer of the Trustee of the occurrence of a default with respect to the
Debentures, mail to all Securityholders, as the names and addresses of
such
holders appear upon the Debenture Register, notice of all defaults with
respect
to the Debentures known to the Trustee, unless such defaults shall have
been
cured before the giving of such notice (the term “defaults” for the purpose of
this Section 5.8 being hereby defined to be the events specified
in
clauses (a), (b), (c), (d), (e) and (f) of Section 5.1, not
including
periods of grace, if any, provided for therein);
provided
,
however
,
that,
except in the case of default in the payment of the principal of, premium,
if
any, or interest on any of the Debentures, the
Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding
of such
notice is in the interests of the Securityholders.
Section
5.9.
Undertaking
to Pay Costs.
All
parties to this Indenture agree, and each holder of any Debenture by his
acceptance thereof shall be deemed to have agreed, that any court may in
its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken
or
omitted by it as Trustee, the filing by any party litigant in such suit
of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to
the
merits and good faith of the claims or defenses made by such party litigant;
provided
,
however
,
that
the provisions of this Section 5.9 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group
of
Securityholders, holding in the aggregate more than 10% in principal amount
of
the Debentures outstanding, or to any suit instituted by any Securityholder
for
the enforcement of the payment of the principal of (or premium, if any)
or
interest on any Debenture against the Company on or after the same shall
have
become due and payable.
ARTICLE
VI.
CONCERNING
THE TRUSTEE
Section
6.1.
Duties
and Responsibilities of Trustee.
With
respect to the holders of Debentures issued hereunder, the Trustee, prior
to the
occurrence of an Event of Default with respect to the Debentures and after
the
curing or waiving of all Events of Default which may have occurred, with
respect
to the Debentures, undertakes to perform such duties and only such duties
as are
specifically set forth in this Indenture, and no implied covenants shall
be read
into this Indenture against the Trustee. In case an Event of Default with
respect to the Debentures has occurred (which has not been cured or waived),
the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
as a
prudent man would exercise or use under the circumstances in the conduct
of his
own affairs.
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct, except that:
(a)
prior
to
the occurrence of an Event of Default with respect to Debentures and after
the
curing or waiving of all Events of Default which may have occurred
(1)
the
duties and obligations of the Trustee with respect to Debentures shall
be
determined solely by the express provisions of this Indenture, and the
Trustee
shall not be liable except for the performance of such duties and obligations
with respect to the Debentures as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee, and
(2)
in
the
absence of bad faith on the part of the Trustee, the 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 Trustee
and conforming to the requirements of this Indenture; but, in the case
of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to
examine the same to determine whether or not they conform to the requirements
of
this Indenture;
(b)
the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer or Officers of the Trustee, unless it shall be proved
that
the Trustee was negligent in ascertaining the pertinent facts; and
(c)
the
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
Securityholders pursuant to Section 5.7, relating to the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
None
of
the provisions contained in this Indenture shall require the 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 there is ground for believing that the repayment of such funds
or
liability is not assured to it under the terms of this Indenture or indemnity
satisfactory to the Trustee against such risk is not reasonably assured
to
it.
Section
6.2.
Reliance
on Documents, Opinions, etc.
Except
as
otherwise provided in Section 6.1:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture
or other
paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b)
any
request, direction, order or demand of the Company mentioned herein shall
be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may
be evidenced to the Trustee by a copy thereof certified by the Secretary
or an
Assistant Secretary of the Company;
(c)
the
Trustee may consult with counsel of its selection and any advice or Opinion
of
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
accordance with such advice or Opinion of Counsel;
(d)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any
of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e)
the
Trustee shall not be liable for any action taken or omitted by it in good
faith
and believed by it to be authorized or within the discretion or rights
or powers
conferred upon it by this Indenture; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event
of
Default with respect to the Debentures (that has not been cured or waived)
to
exercise with respect to Debentures such of the rights and powers vested
in it
by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the
conduct of his own affairs;
(f)
the
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, coupon or other
paper or document, unless requested in writing to do so by the holders
of not
less than a majority in aggregate principal amount of the outstanding Debentures
affected thereby;
provided
,
however
,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by
the
security afforded to it by the terms of this Indenture, the
Trustee
may require reasonable indemnity against such expense or liability as
a
condition to so proceeding;
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents (including any Authenticating
Agent) or attorneys, and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it
with due
care; and
(h)
with
the
exceptions of defaults under Sections 5.1(a) or (b), the Trustee shall
not be
charged with knowledge of any Default or Event of Default with respect
to the
Debentures unless a written notice of such Default or Event of Default
shall
have been given to the Trustee by the Company or any other obligor on the
Debentures or by any holder of the Debentures.
Section
6.3.
No
Responsibility for Recitals, etc.
The
recitals contained herein and in the Debentures (except in the certificate
of
authentication of the Trustee or the Authenticating Agent) shall be taken
as the
statements of the Company, and the Trustee and the Authenticating Agent
assume
no responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Debentures. The Trustee and the Authenticating
Agent
shall not be accountable for the use or application by the Company of any
Debentures or the proceeds of any Debentures authenticated and delivered
by the
Trustee or the Authenticating Agent in conformity with the provisions of
this
Indenture.
Section
6.4.
Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debentures.
The
Trustee or any Authenticating Agent or any paying agent or any transfer
agent or
any Debenture registrar, in its individual or any other capacity, may become
the
owner or pledgee of Debentures with the same rights it would have if it
were not
Trustee, Authenticating Agent, paying agent, transfer agent or Debenture
registrar.
Section
6.5.
Moneys
to be Held in Trust.
Subject
to the provisions of Section 12.4, all moneys received by the Trustee
or
any paying agent shall, until used or applied as herein provided, be held
in
trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee and
any
paying agent shall be under no liability for interest on any money received
by
it hereunder except as otherwise agreed in writing with the Company. So
long as
no Event of Default shall have occurred and be continuing, all interest
allowed
on any such moneys shall be paid from time to time upon the written order
of the
Company, signed by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, a Managing Director, a Vice President, the Treasurer
or
an Assistant Treasurer of the Company.
Section
6.6.
Compensation
and Expenses of Trustee.
The
Company covenants and agrees to pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made
by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or willful misconduct.
For purposes of clarification, this Section 6.6 does not contemplate
the
payment by the Company of acceptance or annual administration fees owing
to the
Trustee pursuant to the services to be provided by the Trustee under this
Indenture or the fees and expenses of the Trustee’s counsel in connection with
the closing of the transactions contemplated by this Indenture. The Company
also
covenants to indemnify each of the Trustee or any predecessor Trustee (and
its
officers, agents, directors and employees) for, and to hold it harmless
against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Trustee) incurred without negligence
or
willful misconduct on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the
costs and expenses of defending itself against any claim of
liability.
The obligations of the Company under this Section 6.6 to compensate
and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that
of the
Debentures upon all property and funds held or collected by the Trustee
as such,
except funds held in trust for the benefit of the holders of particular
Debentures.
Without
prejudice to any other rights available to the Trustee under applicable
law,
when the Trustee incurs expenses or renders services in connection with
an Event
of Default specified in Section 5.1(d), (e) or (f), 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.
The
provisions of this Section shall survive the resignation or removal of
the
Trustee and the defeasance or other termination of this Indenture.
Notwithstanding
anything in this Indenture or any Debenture to the contrary, the Trustee
shall
have no obligation whatsoever to advance funds to pay any principal of
or
interest on or other amounts with respect to the Debentures or otherwise
advance
funds to or on behalf of the Company.
Section
6.7.
Officers’
Certificate as Evidence.
Except
as
otherwise provided in Sections 6.1 and 6.2, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary
or
desirable that a matter be proved or established prior to taking or omitting
any
action hereunder, such matter (unless other evidence in respect thereof
be
herein specifically prescribed) may, in the absence of negligence or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved
and
established by an Officers’ Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or willful misconduct on the
part of
the Trustee, shall be full warrant to the Trustee for any action taken
or
omitted by it under the provisions of this Indenture upon the faith
thereof.
Section
6.8.
Eligibility
of Trustee.
The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person authorized under such laws to exercise corporate trust powers, having
(or
whose obligations under this Indenture are guaranteed by an affiliate having)
a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000.00) and subject to supervision or examination by federal,
state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section 6.8 the combined capital and surplus of such corporation
shall
be deemed to be its combined capital and surplus as set forth in its most
recent
records of condition so published.
The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as
Trustee.
In
case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.8, the Trustee shall resign immediately
in the
manner and with the effect specified in Section 6.9.
If
the
Trustee has or shall acquire any “conflicting interest” within the meaning of §
310(b) of the Trust Indenture Act of 1939, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner described by this
Indenture.
Section
6.9.
Resignation
or Removal of Trustee
(a)
The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign
by giving written notice of such resignation to the Company and by mailing
notice thereof, at the Company’s expense, to the holders of the Debentures at
their addresses as they shall appear on the Debenture Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee or trustees by written instrument, in duplicate, executed by order
of
its Board of Directors, one copy of which instrument shall be delivered
to the
resigning Trustee and one copy to the successor Trustee. If no successor
Trustee
shall have been so appointed and have accepted appointment within 30 days
after
the mailing of such notice of resignation to the affected Securityholders,
the
resigning Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Trustee, or any Securityholder who has been
a bona
fide holder of a Debenture or Debentures for at least six months may, subject
to
the provisions of Section 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may
deem
proper and prescribe, appoint a successor Trustee.
(b)
In
case
at any time any of the following shall occur --
(1)
the
Trustee shall fail to comply with the provisions of Section 6.8
after
written request therefor by the Company or by any Securityholder who has
been a
bona fide holder of a Debenture or Debentures for at least 6 months,
or
(2)
the
Trustee shall cease to be eligible in accordance with the provisions of
Section 6.8 and shall fail to resign after written request therefor
by the
Company or by any such Securityholder, or
(3)
the
Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of
its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then,
in
any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board
of
Directors, one copy of which instrument shall be delivered to the Trustee
so
removed and one copy to the successor Trustee, or, subject to the provisions
of
Section 5.9, any Securityholder who has been a bona fide holder
of a
Debenture or Debentures for at least 6 months may, on behalf of
himself and
all others similarly situated, petition any court of competent jurisdiction
for
the removal of the Trustee and the appointment of a successor Trustee.
Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint successor Trustee.
(c)
Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debentures at the time outstanding
may at
any time remove the Trustee and nominate a successor Trustee, which shall
be
deemed appointed as successor Trustee unless within 10 Business Days after
such
nomination the Company objects thereto, in which case, or in the case of
a
failure by such holders to nominate a successor Trustee, the Trustee so
removed
or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.9 provided, may petition
any court of
competent jurisdiction for an appointment of a successor.
(d)
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section shall become effective
upon
acceptance of appointment by the successor Trustee as provided in
Section 6.10.
Section
6.10.
Acceptance
by Successor Trustee.
Any
successor Trustee appointed as provided in Section 6.9 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with
all the rights, powers, duties and obligations with respect to the Debentures
of
its predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of
the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts
then due it pursuant to the provisions of Section 6.6, execute and
deliver
an instrument transferring to such successor Trustee all the rights and
powers
of the Trustee so ceasing to act and shall duly assign, transfer and deliver
to
such successor Trustee all property and money held by such retiring Trustee
thereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly
vesting
in and confirming to such successor Trustee all such rights and powers.
Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property
or
funds held or collected by such Trustee to secure any amounts then due
it
pursuant to the provisions of Section 6.6.
If
a
successor Trustee is appointed, the Company, the retiring Trustee and the
successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee
with respect to the Debentures as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall
add
to or change any of the provisions of this Indenture as shall be necessary
to
provide for or facilitate the administration of the Trust hereunder by
more than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate
and
apart from any trust or trusts hereunder administered by any other such
Trustee.
No
successor Trustee shall accept appointment as provided in this Section
unless at
the time of such acceptance such successor Trustee shall be eligible under
the
provisions of Section 6.8.
In
no
event shall a retiring Trustee be liable for the acts or omissions of any
successor Trustee hereunder.
Upon
acceptance of appointment by a successor Trustee as provided in this
Section 6.10, the Company shall mail notice of the succession of
such
Trustee hereunder to the holders of Debentures at their addresses as they
shall
appear on the Debenture Register. If the Company fails to mail such notice
within 10 Business Days after the acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at
the
expense of the Company.
Section
6.11.
Succession
by Merger, etc.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business
of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto;
provided
such
corporation shall be otherwise eligible and qualified under this
Article.
In
case
at the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Debentures shall have been authenticated but
not
delivered, any such successor to the Trustee may adopt the certificate
of
authentication of any predecessor Trustee, and deliver such Debentures
so
authenticated; and in case at that time any of the Debentures shall not
have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name
of the
successor Trustee; and in all such cases such certificates shall have the
full
force which it is anywhere in the Debentures or in this Indenture provided
that
the certificate
of
the
Trustee shall have;
provided
,
however
,
that
the right to adopt the certificate of authentication of any predecessor
Trustee
or authenticate Debentures in the name of any predecessor Trustee shall
apply
only to its successor or successors by merger, conversion or
consolidation.
Section
6.12.
Authenticating
Agents.
There
may
be one or more Authenticating Agents appointed by the Trustee upon the
request
of the Company with power to act on its behalf and subject to its direction
in
the authentication and delivery of Debentures issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as
though
any such Authenticating Agent had been expressly authorized to authenticate
and
deliver Debentures;
provided
,
however
,
that
the Trustee shall have no liability to the Company for any acts or omissions
of
the Authenticating Agent with respect to the authentication and delivery
of
Debentures. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of
any state
or territory thereof or of the District of Columbia authorized under such
laws
to act as Authenticating Agent, having a combined capital and surplus of
at
least $50,000,000.00 and being subject to supervision or examination by
federal,
state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually pursuant to law or the
requirements of such authority, then for the purposes of this Section 6.12
the combined capital and surplus of such corporation shall be deemed to
be its
combined capital and surplus as set forth in its most recent report of
condition
so published. If at any time an Authenticating Agent shall cease to be
eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this Section.
Any
corporation into which any Authenticating Agent may be merged or converted
or
with which it may be consolidated, or any corporation resulting from any
merger,
consolidation or conversion to which any Authenticating Agent shall be
a party,
or any corporation succeeding to all or substantially all of the corporate
trust
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing
of any
paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to the Debentures
by giving written notice of termination to such Authenticating Agent and
to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible
under
this Section 6.12, the Trustee may, and upon the request of the
Company
shall, promptly appoint a successor Authenticating Agent eligible under
this
Section 6.12, shall give written notice of such appointment to the
Company
and shall mail notice of such appointment to all holders of Debentures
as the
names and addresses of such holders appear on the Debenture Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities
with
respect to the Debentures of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent herein.
The
Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE
VII.
CONCERNING
THE SECURITYHOLDERS
Section
7.1.
Action
by Securityholders.
Whenever
in this Indenture it is provided that the holders of a specified percentage
in
aggregate principal amount of the Debentures may take any action (including
the
making of any demand or request, the giving of any notice, consent or waiver
or
the taking
of
any
other action) the fact that at the time of taking any such action the
holders of
such specified percentage have joined therein may be evidenced (a) by
any
instrument or any number of instruments of similar tenor executed by
such
Securityholders in person or by agent or proxy appointed in writing,
or
(b) by the record of such holders of Debentures voting in favor
thereof at
any meeting of such Securityholders duly called and held in accordance
with the
provisions of Article VIII, or (c) by a combination of
such instrument
or instruments and any such record of such a meeting of such Securityholders
or
(d) by any other method the Trustee deems satisfactory.
If
the
Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such Debentures for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such
a record
date is fixed, such request, demand, authorization, direction, notice,
consent,
waiver or other action or revocation of the same may be given before or
after
the record date, but only the Securityholders of record at the close of
business
on the record date shall be deemed to be Securityholders for the purposes
of
determining whether Securityholders of the requisite proportion of outstanding
Debentures have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debentures shall be computed
as of the record date;
provided
,
however
,
that no
such authorization, agreement or consent by such Securityholders on the
record
date shall be deemed effective unless it shall become effective pursuant
to the
provisions of this Indenture not later than 6 months after the record
date.
Section
7.2.
Proof
of Execution by Securityholders.
Subject
to the provisions of Section 6.1, 6.2 and 8.5, proof of the execution
of
any instrument by a Securityholder or his agent or proxy shall be sufficient
if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to
the
Trustee. The ownership of Debentures shall be proved by the Debenture Register
or by a certificate of the Debenture registrar. The Trustee may require
such
additional proof of any matter referred to in this Section as it shall
deem
necessary.
The
record of any Securityholders’ meeting shall be proved in the manner provided in
Section 8.6.
Section
7.3.
Who
Are Deemed Absolute Owners.
Prior
to
due presentment for registration of transfer of any Debenture, the Company,
the
Trustee, any Authenticating Agent, any paying agent, any transfer agent
and any
Debenture registrar may deem the Person in whose name such Debenture shall
be
registered upon the Debenture Register to be, and may treat him as, the
absolute
owner of such Debenture (whether or not such Debenture shall be overdue)
for the
purpose of receiving payment of or on account of the principal of, premium,
if
any, and interest on such Debenture and for all other purposes; and neither
the
Company nor the Trustee nor any Authenticating Agent nor any paying agent
nor
any transfer agent nor any Debenture registrar shall be affected by any
notice
to the contrary. All such payments so made to any holder for the time being
or
upon his order shall be valid, and, to the extent of the sum or sums so
paid,
effectual to satisfy and discharge the liability for moneys payable upon
any
such Debenture.
Section
7.4.
Debentures
Owned by Company Deemed Not Outstanding.
In
determining whether the holders of the requisite aggregate principal amount
of
Debentures have concurred in any direction, consent or waiver under this
Indenture, Debentures which are owned by the Company or any other obligor
on the
Debentures or by any Person directly or indirectly controlling or controlled
by
or under direct or indirect common control with the Company or any other
obligor
on the Debentures shall be disregarded and deemed not to be outstanding
for the
purpose of any such determination;
provided
,
however
,
that
for the purposes of determining whether the Trustee shall be protected
in
relying on any such direction, consent or waiver, only Debentures which
a
Responsible Officer of the Trustee actually knows are so owned shall
be so
disregarded. Debentures so owned which have been pledged in good faith
may be
regarded as outstanding for the purposes of this Section 7.4 if
the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right to vote
such Debentures and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by
or under
direct or indirect common control with the Company or any such other
obligor. In
the case of a dispute as to such right, any decision by the Trustee taken
upon
the advice of counsel shall be full protection to the
Trustee.
Section
7.5.
Revocation
of Consents; Future Holders Bound.
At
any
time prior to (but not after) the evidencing to the Trustee, as provided
in
Section 7.1, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Debentures specified in this Indenture
in
connection with such action, any holder (in cases where no record date
has been
set pursuant to Section 7.1) or any holder as of an applicable record
date
(in cases where a record date has been set pursuant to Section 7.1)
of a
Debenture (or any Debenture issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence
to be
included in the Debentures the holders of which have consented to such
action
may, by filing written notice with the Trustee at the Principal Office
of the
Trustee and upon proof of holding as provided in Section 7.2, revoke
such
action so far as concerns such Debenture (or so far as concerns the principal
amount represented by any exchanged or substituted Debenture). Except as
aforesaid any such action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future holders and
owners
of such Debenture, and of any Debenture issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether
or not
any notation in regard thereto is made upon such Debenture or any Debenture
issued in exchange or substitution therefor.
ARTICLE
VIII.
SECURITYHOLDERS’
MEETINGS
Section
8.1.
Purposes
of Meetings.
A
meeting
of Securityholders may be called at any time and from time to time pursuant
to
the provisions of this Article VIII for any of the following
purposes:
(a)
to
give
any notice to the Company or to the Trustee, or to give any directions
to the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of
Article V;
(b)
to
remove
the Trustee and nominate a successor trustee pursuant to the provisions
of
Article VI;
(c)
to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.2; or
(d)
to
take
any other action authorized to be taken by or on behalf of the holders
of any
specified aggregate principal amount of such Debentures under any other
provision of this Indenture or under applicable law.
Section
8.2.
Call
of Meetings by Trustee.
The
Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 8.1, to be held at such time and at such place
as the
Trustee shall determine. Notice of every meeting of the Securityholders,
setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders of Debentures
affected at their addresses as they shall appear on the Debentures
Register
and, if the Company is not a holder of Debentures, to the Company. Such
notice
shall be mailed not less than 20 nor more than 180 days prior
to the date
fixed for the meeting.
Section
8.3.
Call
of Meetings by Company or Securityholders.
In
case
at any time the Company pursuant to a Board Resolution, or the holders
of at
least 10% in aggregate principal amount of the Debentures, as the case
may be,
then outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail
the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of
such
request, then the Company or such Securityholders may determine the time
and the
place for such meeting and may call such meeting to take any action authorized
in Section 8.1, by mailing notice thereof as provided in
Section 8.2.
Section
8.4.
Qualifications
for Voting.
To
be
entitled to vote at any meeting of Securityholders a Person shall (a) be
a
holder of one or more Debentures with respect to which the meeting is being
held
or (b) a Person appointed by an instrument in writing as proxy by
a holder
of one or more such Debentures. The only Persons who shall be entitled
to be
present or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of
the Trustee and its counsel and any representatives of the Company and
its
counsel.
Section
8.5.
Regulations.
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders,
in
regard to proof of the holding of Debentures and of the appointment of
proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the
right to vote, and such other matters concerning the conduct of the meeting
as
it shall think fit.
The
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 8.3, in which case the Company
or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the
meeting.
Subject
to the provisions of Section 7.4, at any meeting each holder of
Debentures
with respect to which such meeting is being held or proxy therefor shall
be
entitled to one vote for each $1,000.00 principal amount of Debentures
held or
represented by him;
provided
,
however
,
that no
vote shall be cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the meeting
to be not
outstanding. The chairman of the meeting shall have no right to vote other
than
by virtue of Debentures held by him or instruments in writing as aforesaid
duly
designating him as the Person to vote on behalf of other Securityholders.
Any
meeting of Securityholders duly called pursuant to the provisions of
Section 8.2 or 8.3 may be adjourned from time to time by a majority
of
those present, whether or not constituting a quorum, and the meeting may
be held
as so adjourned without further notice.
Section
8.6.
Voting.
The
vote
upon any resolution submitted to any meeting of holders of Debentures with
respect to which such meeting is being held shall be by written ballots
on which
shall be subscribed the signatures of such holders or of their representatives
by proxy and the serial number or numbers of the Debentures held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors
of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their
verified written reports in triplicate of all votes cast at the meeting.
A
record in duplicate of the proceedings of each meeting of Securityholders
shall
be prepared by the secretary of the meeting and there shall be attached
to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more
Persons
having knowledge of the facts setting forth a copy of the notice of the
meeting
and showing that said notice was mailed as provided in Section 8.2.
The
record shall show the serial numbers of the Debentures voting in favor
of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and
one of the
duplicates shall be delivered to the Company and the other to the Trustee
to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted
at the meeting.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section
8.7.
Quorum;
Actions.
The
Persons entitled to vote a majority in principal amount of the Debentures
then
outstanding shall constitute a quorum for a meeting of Securityholders;
provided
,
however
,
that if
any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which
may be
given by the holders of not less than a specified percentage in principal
amount
of the Debentures then outstanding, the Persons holding or representing
such
specified percentage in principal amount of the Debentures then outstanding
will
constitute a quorum. In the absence of a quorum within 30 minutes
of the
time appointed for any such meeting, the meeting shall, if convened at
the
request of Securityholders, be dissolved. In any other case the meeting
may be
adjourned for a period of not less than 10 days as determined by
the
permanent chairman of the meeting prior to the adjournment of such meeting.
In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as
determined by the permanent chairman of the meeting prior to the adjournment
of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall
be given as provided in Section 8.2, except that such notice need
be given
only once not less than 5 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal
amount
of the Debentures then outstanding which shall constitute a quorum.
Except
as
limited by the provisos in the first paragraph of Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened
at which
a quorum is present as aforesaid may be adopted by the affirmative vote
of the
holders of a majority in principal amount of the Debentures then outstanding;
provided
,
however
,
that,
except as limited by the provisos in the first paragraph of Section 9.2,
any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which this Indenture expressly
provides
may be given by the holders of not less than a specified percentage in
principal
amount of the Debentures then outstanding may be adopted at a meeting or
an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the holders of a not less than such specified
percentage in principal amount of the Debentures then outstanding.
Any
resolution passed or decision taken at any meeting of holders of Debentures
duly
held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the
meeting.
ARTICLE
IX.
SUPPLEMENTAL
INDENTURES
Section
9.1.
Supplemental
Indentures without Consent of Securityholders.
The
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental
hereto,
without the consent of the Securityholders, for one or more of the following
purposes:
(a)
to
evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants,
agreements and obligations of the Company, pursuant to Article XI
hereof;
(b)
to
add to
the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debentures as the Board of Directors
shall
consider to be for the protection of the holders of such Debentures, and
to make
the occurrence, or the occurrence and continuance, of a default in any
of such
additional covenants, restrictions or conditions a default or an Event
of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided
,
however
,
that in
respect of any such additional covenant restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of
other defaults) or may provide for an immediate enforcement upon such default
or
may limit the remedies available to the Trustee upon such default;
(c)
to
cure
any ambiguity or to correct or supplement any provision contained herein
or in
any supplemental indenture which may be defective or inconsistent with
any other
provision contained herein or in any supplemental indenture, or to make
such
other provisions in regard to matters or questions arising under this Indenture;
provided
that any
such action shall not materially adversely affect the interests of the
holders
of the Debentures;
(d)
to
add
to, delete from, or revise the terms of Debentures, including, without
limitation, any terms relating to the issuance, exchange, registration
or
transfer of Debentures, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital Securities
as required by Section 2.5 (for purposes of assuring that no registration
of Debentures is required under the Securities Act);
provided
,
however
,
that
any such action shall not adversely affect the interests of the holders
of the
Debentures then outstanding (it being understood, for purposes of this
proviso,
that transfer restrictions on Debentures substantially similar to those
that
were applicable to Capital Securities shall not be deemed to materially
adversely affect the holders of the Debentures);
(e)
to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debentures and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee;
(f)
to
make
any change (other than as elsewhere provided in this paragraph) that does
not
adversely affect the rights of any Securityholder in any material respect;
or
(g)
to
provide for the issuance of and establish the form and terms and conditions
of
the Debentures, to establish the form of any certifications required to
be
furnished pursuant to the terms of this Indenture or the Debentures, or
to add
to the rights of the holders of Debentures.
The
Trustee is hereby authorized to join with the Company in the execution
of any
such supplemental indenture, to make any further appropriate agreements
and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall
not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section 9.1
may
be executed by the Company and the Trustee without the consent of the holders
of
any of the Debentures at the time outstanding, notwithstanding any of the
provisions of Section 9.2.
Section
9.2.
Supplemental
Indentures with Consent of Securityholders.
With
the
consent (evidenced as provided in Section 7.1) of the holders of
not less
than a majority in aggregate principal amount of the Debentures at the
time
outstanding affected by such supplemental indenture (voting as a class),
the
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental
hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures;
provided
,
however
,
that no
such supplemental indenture shall without the consent of the holders of
each
Debenture then outstanding and affected thereby (i) change the fixed
maturity of any Debenture, or reduce the principal amount thereof or any
premium
thereon, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof or make the principal
thereof
or any interest or premium thereon payable in any coin or currency other
than
that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right
of
repayment, if any, at the option of the holder, or (ii) reduce the
aforesaid percentage of Debentures the holders of which are required to
consent
to any such supplemental indenture;
provided
further
,
however
,
that if
the Debentures are held by a trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in Liquidation
Amount of Trust Securities shall have consented to such supplemental indenture;
provided
further
,
however
,
that if
the consent of the Securityholder of each outstanding Debenture is required,
such supplemental indenture shall not be effective until each holder of
the
Trust Securities shall have consented to such supplemental
indenture.
Upon
the
request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with
the
Trustee of evidence of the consent of Securityholders as aforesaid, the
Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee
may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
Promptly
after the execution by the Company and the Trustee of any supplemental
indenture
pursuant to the provisions of this Section, the Trustee shall transmit
by mail,
first class postage prepaid, a notice, prepared by the Company, setting
forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Debenture
Register.
Any failure of the Trustee to mail such notice, or any defect therein,
shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
It
shall
not be necessary for the consent of the Securityholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section
9.3.
Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified
and
amended in accordance therewith and the respective rights, limitations
of
rights, obligations, duties and immunities under this Indenture of the
Trustee,
the Company and the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions
of this
Indenture for any and all purposes.
Section
9.4.
Notation
on Debentures.
Debentures
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may bear a notation
as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debentures so modified as to conform, in
the
opinion of the Board of Directors of the
Company,
to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated
by the
Trustee or the Authenticating Agent and delivered in exchange for the
Debentures
then outstanding.
Section
9.5.
Evidence
of Compliance of Supplemental Indenture to be Furnished to
Trustee.
The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall,
in
addition to the documents required by Section 14.6, receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel
as
conclusive evidence that any supplemental indenture executed pursuant to
this
Article IX is authorized or permitted by, and conforms to, the terms
of
this Article IX and that it is proper for the Trustee under the
provisions
of this Article IX to join in the execution thereof.
ARTICLE
X.
REDEMPTION
OF SECURITIES
Section
10.1.
Optional
Redemption.
The
Company shall have the right (subject to the receipt by the Company of
prior
approval (i) if the Company is a bank holding company, from the
Federal
Reserve, if then required under applicable capital guidelines or policies
of the
Federal Reserve or (ii) if the Company is a savings and loan holding
company, from the OTS, if then required under applicable capital guidelines
or
policies of the OTS) to redeem the Debentures, in whole or in part, but
in all
cases in a principal amount with integral multiples of $1,000.00, on any
Interest Payment Date on or after the Interest Payment Date in September
2010
(the “
Redemption
Date
”),
at
the Redemption Price.
Section
10.2.
Special
Event Redemption.
If
a
Special Event shall occur and be continuing, the Company shall have the
right
(subject to the receipt by the Company of prior approval (i) if
the Company
is a bank holding company, from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve or (ii) if
the Company is a savings and loan holding company, from the OTS, if then
required under applicable capital guidelines or policies of the OTS) to
redeem
the Debentures in whole, but not in part, at any Interest Payment Date,
within
120 days following the occurrence of such Special Event (the “
Special
Redemption Date
”)
at the
Special Redemption Price. If the Special Event redemption occurs prior
to the
Interest Payment Date in September 2010, the Company shall appoint a Quotation
Agent, which shall be a designee of the Institutional Trustee, for the
purpose
of performing the services contemplated in, or by reference in, the definition
of Special Redemption Price. Any error in the calculation of the Special
Redemption Price by the Quotation Agent or the Trustee may be corrected
at any
time by notice delivered to the Company and the holders of the Debentures.
Subject to the corrective rights set forth above, all certificates,
communications, opinions, determinations, calculations, quotations and
decisions
given, expressed, made or obtained for the purposes of the provisions relating
to the payment and calculation of the Special Redemption Price on the Debentures
by the Trustee or the Quotation Agent, as the case may be, shall (in the
absence
of willful default, bad faith or manifest error) be final, conclusive and
binding on the holders of the Debentures and the Company, and no liability
shall
attach (except as provided above) to the Trustee or the Quotation Agent
in
connection with the exercise or non-exercise by any of them of their respective
powers, duties and discretion.
Section
10.3.
Notice
of Redemption; Selection of Debentures.
In
case
the Company shall desire to exercise the right to redeem all, or, as the
case
may be, any part of the Debentures, it shall cause to be mailed a notice
of such
redemption at least 30 and not more than 60 days prior to the Redemption
Date or the Special Redemption Date to the holders of Debentures so to
be
redeemed as a whole or in part at their last addresses as the same appear
on the
Debenture Register. Such mailing shall be by first class mail. The notice
if
mailed in the manner herein provided shall be conclusively presumed to
have been
duly
given, whether or not the holder receives such notice. In any case, failure
to
give such notice by mail or any defect in the notice to the holder of
any
Debenture designated for redemption as a whole or in part shall not affect
the
validity of the proceedings for the redemption of any other
Debenture.
Each
such
notice of redemption shall specify the CUSIP number, if any, of the Debentures
to be redeemed, the Redemption Date or the Special Redemption Date, as
applicable, the Redemption Price or the Special Redemption Price, as applicable,
at which Debentures are to be redeemed, the place or places of payment,
that
payment will be made upon presentation and surrender of such Debentures,
that
interest accrued to the date fixed for redemption will be paid as specified
in
said notice, and that on and after said date interest thereon or on the
portions
thereof to be redeemed will cease to accrue. If less than all the Debentures
are
to be redeemed the notice of redemption shall specify the numbers of the
Debentures to be redeemed. In case the Debentures are to be redeemed in
part
only, the notice of redemption shall state the portion of the principal
amount
thereof to be redeemed and shall state that on and after the date fixed
for
redemption, upon surrender of such Debenture, a new Debenture or Debentures
in
principal amount equal to the unredeemed portion thereof will be
issued.
Prior
to
10:00 a.m. New York City time on the Redemption Date or Special Redemption
Date,
as applicable, the Company will deposit with the Trustee or with one or
more
paying agents an amount of money sufficient to redeem on the Redemption
Date or
the Special Redemption Date, as applicable, all the Debentures so called
for
redemption at the appropriate Redemption Price or Special Redemption
Price.
If
all,
or less than all, the Debentures are to be redeemed, the Company will give
the
Trustee notice not less than 45 nor more than 60 days, respectively,
prior
to the Redemption Date or Special Redemption Date, as applicable, as to
the
aggregate principal amount of Debentures to be redeemed and the Trustee
shall
select, in such manner as in its sole discretion it shall deem appropriate
and
fair, the Debentures or portions thereof (in integral multiples of $1,000.00)
to
be redeemed.
Section
10.4.
Payment
of Debentures Called for Redemption.
If
notice
of redemption has been given as provided in Section 10.3, the Debentures
or
portions of Debentures with respect to which such notice has been given
shall
become due and payable on the Redemption Date or Special Redemption Date,
as
applicable, and at the place or places stated in such notice at the applicable
Redemption Price or Special Redemption Price and on and after said date
(unless
the Company shall default in the payment of such Debentures at the Redemption
Price or Special Redemption Price, as applicable) interest on the Debentures
or
portions of Debentures so called for redemption shall cease to accrue.
On
presentation and surrender of such Debentures at a place of payment specified
in
said notice, such Debentures or the specified portions thereof shall be
paid and
redeemed by the Company at the applicable Redemption Price or Special Redemption
Price.
Upon
presentation of any Debenture redeemed in part only, the Company shall
execute
and the Trustee shall authenticate and make available for delivery to the
holder
thereof, at the expense of the Company, a new Debenture or Debentures of
authorized denominations, in principal amount equal to the unredeemed portion
of
the Debenture so presented.
ARTICLE
XI.
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
Section
11.1.
Company
May Consolidate, etc., on Certain Terms.
Nothing
contained in this Indenture or in the Debentures shall prevent any consolidation
or merger of the Company with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or mergers in
which
the Company or its successor or successors shall be a party or parties,
or shall
prevent any sale, conveyance, transfer or other disposition of the property
of
the Company or its successor or successors as
an
entirety, or substantially as an entirety, to any other Person (whether
or not
affiliated with the Company, or its successor or successors) authorized
to
acquire and operate the same;
provided
,
however
,
that
the Company hereby covenants and agrees that, upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal
of
(and premium, if any) and interest on all of the Debentures in accordance
with
their terms, according to their tenor, and the due and punctual performance
and
observance of all the covenants and conditions of this Indenture to be
kept or
performed by the Company, shall be expressly assumed by supplemental
indenture
reasonably satisfactory in form to the Trustee executed and delivered
to the
Trustee by the entity formed by such consolidation, or into which the
Company
shall have been merged, or by the entity which shall have acquired such
property.
Section
11.2.
Successor
Entity to be Substituted.
In
case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor entity, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form
to the
Trustee, of the due and punctual payment of the principal of and premium,
if
any, and interest on all of the Debentures and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture
to be
performed or observed by the Company, such successor entity shall succeed
to and
be substituted for the Company, with the same effect as if it had been
named
herein as the Company, and thereupon the predecessor entity shall be relieved
of
any further liability or obligation hereunder or upon the Debentures. Such
successor entity thereupon may cause to be signed, and may issue in its
own
name, any or all of the Debentures issuable hereunder which theretofore
shall
not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor entity instead
of
the Company and subject to all the terms, conditions and limitations in
this
Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate
and deliver any Debentures which previously shall have been signed and
delivered
by the officers of the Company, to the Trustee or the Authenticating Agent
for
authentication, and any Debentures which such successor entity thereafter
shall
cause to be signed and delivered to the Trustee or the Authenticating Agent
for
that purpose. All the Debentures so issued shall in all respects have the
same
legal rank and benefit under this Indenture as the Debentures theretofore
or
thereafter issued in accordance with the terms of this Indenture as though
all
of such Debentures had been issued at the date of the execution
hereof.
Section
11.3.
Opinion
of Counsel to be Given to Trustee.
The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive,
in addition to the Opinion of Counsel required by Section 9.5, an
Opinion
of Counsel as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or other disposition, and any assumption, permitted
or
required by the terms of this Article XI complies with the provisions
of
this Article XI.
ARTICLE
XII.
SATISFACTION
AND DISCHARGE OF INDENTURE
Section
12.1.
Discharge
of Indenture.
When
|
|
(a)
|
the
Company shall deliver to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall
have been
destroyed, lost or stolen and which shall have been replaced
or paid as
provided in Section 2.6) and not theretofore canceled,
or
|
|
|
(b)
|
all
the Debentures not theretofore canceled or delivered to the Trustee
for
cancellation shall have become due and payable, or are by their
terms to
become due and payable within 1 year or are to be called for
redemption
within 1 year under arrangements satisfactory to the Trustee
for the
giving of notice of redemption, and the Company shall deposit
with the
Trustee, in trust, funds, which shall be immediately due and
payable,
sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost
or stolen
and which shall have been replaced or paid as provided in
Section 2.6) not theretofore canceled or delivered to
the Trustee for
cancellation, including principal and premium, if any, and interest
due or
to become due to such date of maturity or redemption date, as
the case may
be, but excluding, however, the amount of any moneys for the
payment of
principal of, and premium, if any, or interest on the Debentures
(1) theretofore repaid to the Company in accordance with
the
provisions of Section 12.4, or (2) paid to any
state or to the
District of Columbia pursuant to its unclaimed property or similar
laws,
|
and
if in
the case of either clause (a) or clause (b) the Company shall
also pay
or cause to be paid all other sums payable hereunder by the Company, then
this
Indenture shall cease to be of further effect except for the provisions
of
Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4 hereof
shall
survive until such Debentures shall mature and be paid. Thereafter,
Sections 6.6 and 12.4 shall survive, and the Trustee, on demand
of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, and
at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the
Debentures.
Section
12.2.
Deposited
Moneys to be Held in Trust by Trustee.
Subject
to the provisions of Section 12.4, all moneys deposited with the
Trustee
pursuant to Section 12.1 shall be held in trust in a non-interest
bearing
account and applied by it to the payment, either directly or through any
paying
agent (including the Company if acting as its own paying agent), to the
holders
of the particular Debentures for the payment of which such moneys have
been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and premium, if any, and interest.
Section
12.3.
Paying
Agent to Repay Moneys Held.
Upon
the
satisfaction and discharge of this Indenture all moneys then held by any
paying
agent of the Debentures (other than the Trustee) shall, upon demand of
the
Company, be repaid to it or paid to the Trustee, and thereupon such paying
agent
shall be released from all further liability with respect to such
moneys.
Section
12.4.
Return
of Unclaimed Moneys.
Any
moneys deposited with or paid to the Trustee or any paying agent for payment
of
the principal of, and premium, if any, or interest on Debentures and not
applied
but remaining unclaimed by the holders of Debentures for 2 years after
the date
upon which the principal of, and premium, if any, or interest on such
Debentures, as the case may be, shall have become due and payable, shall,
subject to applicable escheatment laws, be repaid to the Company by the
Trustee
or such paying agent on written demand; and the holder of any of the Debentures
shall thereafter look only to the Company for any payment which such holder
may
be entitled to collect, and all liability of the Trustee or such paying
agent
with respect to such moneys shall thereupon cease.
ARTICLE
XIII.
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS,
OFFICERS
AND DIRECTORS
Section
13.1.
Indenture
and Debentures Solely Corporate Obligations.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of
the
Company in this Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, officer or
director, as such, past, present or future, of the Company or of any
successor
Person of the Company, either directly or through the Company or any
successor
Person of the Company, whether by virtue of any constitution, statute
or rule of
law, or by the enforcement of any assessment or penalty or otherwise,
it being
expressly understood that all such liability is hereby expressly waived
and
released as a condition of, and as a consideration for, the execution
of this
Indenture and the issue of the Debentures.
ARTICLE
XIV.
MISCELLANEOUS
PROVISIONS
Section
14.1.
Successors.
All
the
covenants, stipulations, promises and agreements of the Company in this
Indenture shall bind its successors and assigns whether so expressed or
not.
Section
14.2.
Official
Acts by Successor Entity.
Any
act
or proceeding by any provision of this Indenture authorized or required
to be
done or performed by any board, committee or officer of the Company shall
and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall
at the
time be the lawful successor of the Company.
Section
14.3.
Surrender
of Company Powers.
The
Company by instrument in writing executed by authority of at least 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company and thereupon such
power so
surrendered shall terminate both as to the Company, and as to any permitted
successor.
Section
14.4.
Addresses
for Notices, etc.
Any
notice, consent, direction, request, authorization, waiver or demand which
by
any provision of this Indenture is required or permitted to be given, made,
furnished or served by the Trustee or by the Securityholders on or to the
Company may be given or served in writing by being deposited postage prepaid
by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company, with the Trustee for the purpose)
to
the Company, 23 Broad Street, Westerly, Rhode Island 02891, Attention:
David V. Devault. Any notice, consent, direction, request, authorization,
waiver or demand by any Securityholder or the Company to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes,
if
given or made in writing at the office of the Trustee, addressed to the
Trustee,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600,
Attention: Corporate Trust Administration. Any notice, consent, direction,
request, authorization, waiver or demand on or to any Securityholder shall
be
deemed to have been sufficiently given or made, for all purposes, if given
or
made in writing at the address set forth in the Debenture Register.
Section
14.5.
Governing
Law.
This
Indenture and each Debenture shall be deemed to be a contract made under
the law
of the State of New York, and for all purposes shall be governed by and
construed in accordance with the law of said State, without regard to conflict
of laws principles thereof.
Section
14.6.
Evidence
of Compliance with Conditions Precedent.
Upon
any
application or demand by the Company to the Trustee to take any action
under any
of the provisions of this Indenture, the Company shall furnish to the Trustee
an
Officers’ Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that,
in the
opinion of such counsel, all such conditions precedent have been complied
with.
Each
certificate or opinion provided for in this Indenture and delivered to
the
Trustee with respect to compliance with a condition or covenant provided
for in
this Indenture shall include (1) a statement that the person making
such
certificate or opinion has read such covenant or condition; (2) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or
opinions
contained in such certificate or opinion are based; (3) a statement
that,
in the opinion of such person, he has made such examination or investigation
as
is necessary to enable him to express an informed opinion as to whether
or not
such covenant or condition has been complied with; and (4) a statement
as
to whether or not in the opinion of such person, such condition or covenant
has
been complied with.
Section
14.7.
Table
of Contents, Headings, etc.
The
table
of contents and the titles and headings of the articles and sections of
this
Indenture have been inserted for convenience of reference only, are not
to be
considered a part hereof, and shall in no way modify or restrict any of
the
terms or provisions hereof.
Section
14.8.
Execution
in Counterparts.
This
Indenture may be executed in any number of counterparts, each of which
shall be
an original, but such counterparts shall together constitute but one and
the
same instrument.
Section
14.9.
Separability.
In
case
any one or more of the provisions contained in this Indenture or in the
Debentures shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect
any other provisions of this Indenture or of such Debentures, but this
Indenture
and such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section
14.10.
Assignment.
The
Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided that, in the event of any such assignment, the
Company
will remain liable for all such obligations. Subject to the foregoing,
this
Indenture is binding upon and inures to the benefit of the parties hereto
and
their respective successors and assigns. This Indenture may not otherwise
be
assigned by the parties hereto.
Section
14.11.
Acknowledgment
of Rights.
The
Company agrees that, with respect to any Debentures held by the Trust or
the
Institutional Trustee of the Trust, if the Institutional Trustee of the
Trust
fails to enforce its rights under this Indenture as the holder of Debentures
held as the assets of such Trust after the holders of a majority in Liquidation
Amount of the Capital Securities of such Trust have so directed such
Institutional Trustee, a holder of record of such Capital Securities may,
to the
fullest extent permitted by law, institute legal proceedings directly against
the Company to enforce such Institutional Trustee’s rights under this Indenture
without first instituting any legal proceedings against such trustee or
any
other Person. Notwithstanding the foregoing, if an Event of Default has
occurred
and is continuing and such event is attributable to the failure of the
Company
to pay interest (or premium, if any) or principal on the Debentures on
the date
such interest (or premium, if any) or principal is otherwise payable (or
in the
case of redemption, on the redemption date), the Company agrees that a
holder of
record of Capital Securities of the Trust may directly institute a proceeding
against the Company for enforcement of payment to such holder directly
of the
principal of (or premium, if any) or interest on the Debentures having
an
aggregate principal amount equal to the aggregate Liquidation Amount of
the
Capital Securities of such holder on or after the respective due date specified
in the Debentures.
ARTICLE
XV.
SUBORDINATION
OF DEBENTURES
Section
15.1.
Agreement
to Subordinate.
The
Company covenants and agrees, and each holder of Debentures by such
Securityholder’s acceptance thereof likewise covenants and agrees, that all
Debentures shall be issued subject to the provisions of this Article XV;
and each holder of a Debenture, whether upon original issue or upon transfer
or
assignment thereof, accepts and agrees to be bound by such
provisions.
The
payment by the Company of the principal of, and premium, if any, and interest
on
all Debentures shall, to the extent and in the manner hereinafter set forth,
be
subordinated and junior in right of payment to the prior payment in full
of all
Senior Indebtedness of the Company, whether outstanding at the date of
this
Indenture or thereafter incurred;
provided
,
however
,
that
the Debentures shall rank
pari
passu
in right
of payment with the Company’s Junior Subordinated Debt Securities due 2035
issued to WT Capital Trust II pursuant to an Indenture dated
as of the
date hereof between the Company and Wilmington Trust Company.
No
provision of this Article XV shall prevent the occurrence of any
default or
Event of Default hereunder.
Section
15.2.
Default
on Senior Indebtedness.
In
the
event and during the continuation of any default by the Company in the
payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company following any grace period, or in the event
that the
maturity of any Senior Indebtedness of the Company has been accelerated
because
of a default and such acceleration has not been rescinded or canceled and
such
Senior Indebtedness has not been paid in full, then, in either case, no
payment
shall be made by the Company with respect to the principal (including
redemption) of, or premium, if any, or interest on the Debentures.
In
the
event that, notwithstanding the foregoing, any payment shall be received
by the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.2, such payment shall, subject to Section 15.7,
be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of
Senior Indebtedness or their respective representatives, or to the trustee
or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only
to the
extent that the holders of the Senior Indebtedness (or their representative
or
representatives or a trustee) notify the Trustee in writing within 90 days
of such payment of the amounts then due and owing on the Senior Indebtedness
and
only the amounts specified in such notice to the Trustee shall be paid
to the
holders of Senior Indebtedness.
Section
15.3.
Liquidation,
Dissolution, Bankruptcy.
Upon
any
payment by the Company or distribution of assets of the Company of any
kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or
other proceedings, all amounts due upon all Senior Indebtedness of the
Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company, on
account
of the principal (and premium, if any) or interest on the Debentures. Upon
any
such dissolution or winding-up or liquidation or reorganization, any payment
by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Securityholders or
the
Trustee would be entitled to receive from the Company, except for the provisions
of this Article XV, shall be paid by the Company, or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making
such
payment or distribution, or by the Securityholders or by the Trustee under
this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (
pro
rata
to such
holders on the basis of the respective amounts of Senior Indebtedness held
by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to
which any instruments evidencing such Senior Indebtedness may have been
issued,
as their respective interests may appear, to the extent necessary to pay
such
Senior Indebtedness in full, in money or money’s worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Securityholders
or to the Trustee.
In
the
event that, notwithstanding the foregoing, any payment or distribution
of assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee
before
all Senior Indebtedness is paid in full, or provision is made for such
payment
in money in accordance with its terms, such payment or distribution shall
be
held in trust for the benefit of and shall be paid over or delivered to
the
holders of such Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been issued, as
their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Indebtedness, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance
with
its terms, after giving effect to any concurrent payment or distribution
to or
for the benefit of the holders of such Senior Indebtedness.
For
purposes of this Article XV, the words “cash, property or securities” shall
not be deemed to include shares of stock of the Company as reorganized
or
readjusted, or securities of the Company or any other corporation provided
for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV
with
respect to the Debentures to the payment of all Senior Indebtedness, that
may at
the time be outstanding, provided that (i) such Senior Indebtedness
is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with,
or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property
as an entirety, or substantially as an entirety, to another corporation
upon the
terms and conditions provided for in Article XI of this Indenture
shall not
be deemed a dissolution, winding-up, liquidation or reorganization for
the
purposes of this Section if such other corporation shall, as a part of
such
consolidation, merger, conveyance or transfer, comply with the conditions
stated
in Article XI of this Indenture. Nothing in Section 15.2
or in this
Section shall apply to claims of, or payments to, the Trustee under or
pursuant
to Section 6.6 of this Indenture.
Section
15.4.
Subrogation.
Subject
to the payment in full of all Senior Indebtedness, the Securityholders
shall be
subrogated to the rights of the holders of such Senior Indebtedness to
receive
payments or distributions of cash, property or securities of the Company,
applicable to such Senior Indebtedness until the principal of (and premium,
if
any) and interest on the Debentures shall be paid in full. For the purposes
of
such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or
the Trustee would be entitled except for the provisions of this Article XV,
and no payment over pursuant to the provisions of this Article XV
to or for
the benefit of the holders of such Senior Indebtedness by Securityholders
or the
Trustee, shall, as between the Company, its creditors other than holders
of
Senior Indebtedness of the Company, and the holders of the Debentures be
deemed
to be a payment or distribution by the Company to or on account of such
Senior
Indebtedness. It is understood that the provisions of this Article XV
are
and are intended solely for the purposes of defining the relative rights
of the
holders of the Securities, on the one hand, and the holders of such Senior
Indebtedness, on the other hand.
Nothing
contained in this Article XV or elsewhere in this Indenture or in
the
Debentures is intended to or shall impair, as between the Company, its
creditors
other than the holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debentures the principal of (and premium,
if any)
and interest on the Debentures as and when the same shall become due and
payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debentures and creditors of the Company, other
than
the holders of Senior Indebtedness, nor shall anything herein or therein
prevent
the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject
to the rights, if any, under this Article XV of the holders of
such
Senior Indebtedness in respect of cash, property or securities of the
Company,
received upon the exercise of any such remedy.
Upon
any
payment or distribution of assets of the Company referred to in this
Article XV, the Trustee, subject to the provisions of Article VI
of
this Indenture, and the Securityholders shall be entitled to conclusively
rely
upon any order or decree made by any court of competent jurisdiction in
which
such dissolution, winding-up, liquidation or reorganization proceedings
are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered
to
the Trustee or to the Securityholders, for the purposes of ascertaining
the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof
or
payable thereon, the amount or amounts paid or distributed thereon and
all other
facts pertinent thereto or to this Article XV.
Section
15.5.
Trustee
to Effectuate Subordination.
Each
Securityholder by such Securityholder’s acceptance thereof authorizes and
directs the Trustee on such Securityholder’s behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in
this
Article XV and appoints the Trustee such Securityholder’s attorney-in-fact
for any and all such purposes.
Section
15.6.
Notice
by the Company.
The
Company shall give prompt written notice to a Responsible Officer of the
Trustee
at the Principal Office of the Trustee of any fact known to the Company
that
would prohibit the making of any payment of monies to or by the Trustee
in
respect of the Debentures pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision
of
this Indenture, the Trustee shall not be charged with knowledge of the
existence
of any facts that would prohibit the making of any payment of monies to
or by
the Trustee in respect of the Debentures pursuant to the provisions of
this
Article XV, unless and until a Responsible Officer of the Trustee
at the
Principal Office of the Trustee shall have received written notice thereof
from
the Company or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article VI of this Indenture, shall
be
entitled in all respects to assume that no such facts exist;
provided
,
however
,
that if
the Trustee shall not have received the notice provided for in this Section
at
least 2 Business Days prior to the date upon which by the terms hereof
any money
may become payable for any purpose (including, without limitation, the
payment
of the principal of (or premium, if any) or interest on any Debenture),
then,
anything herein contained to the contrary notwithstanding, the Trustee
shall
have full power and authority to receive such money and to apply the same
to the
purposes for which they were received, and shall not be affected by any
notice
to the contrary that may be received by it within 2 Business Days prior
to such
date.
The
Trustee, subject to the provisions of Article VI of this Indenture,
shall
be entitled to conclusively rely on the delivery to it of a written notice
by a
Person representing himself to be a holder of Senior Indebtedness (or a
trustee
or representative on behalf of such holder), to establish that such notice
has
been given by a holder of such Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that
the
Trustee determines in good faith that further evidence is required with
respect
to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV,
the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness
held by
such Person, the extent to which such Person is entitled to participate
in such
payment or distribution and any other facts pertinent to the rights of
such
Person under this Article XV, and, if such evidence is not furnished,
the
Trustee may defer any payment to such Person pending judicial determination
as
to the right of such Person to receive such payment.
Section
15.7.
Rights
of the Trustee; Holders of Senior Indebtedness.
The
Trustee in its individual capacity shall be entitled to all the rights
set forth
in this Article XV in respect of any Senior Indebtedness at any
time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights
as such
holder.
With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform
or to observe only such of its covenants and obligations as are specifically
set
forth in this Article XV, and no implied covenants or obligations
with
respect to the holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject
to the
provisions of Article VI of this Indenture, the Trustee shall not
be liable
to any holder of such Senior Indebtedness if it shall pay over or deliver
to
Securityholders, the Company or any other Person money or assets to which
any
holder of such Senior Indebtedness shall be entitled by virtue of this
Article XV or otherwise.
Nothing
in this Article XV shall apply to claims of, or payments to, the
Trustee
under or pursuant to Section 6.6.
Section
15.8.
Subordination
May Not Be Impaired.
No
right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced
or
impaired by any act or failure to act on the part of the Company, or by
any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by
the Company, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness may, at any time and from time to time, without the
consent
of or notice to the Trustee or the Securityholders, without incurring
responsibility to the Securityholders and without impairing or releasing
the
subordination provided in this Article XV or the obligations hereunder
of
the holders of the Debentures to the holders of such Senior Indebtedness,
do any
one or more of the following: (i) change the manner, place or terms
of
payment or extend the time of payment of, or renew or alter, such Senior
Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under
which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release
or
otherwise deal with any property pledged, mortgaged or otherwise securing
such
Senior Indebtedness; (iii) release any Person liable in any manner
for the
collection of such Senior Indebtedness; and (iv) exercise or refrain
from
exercising any rights against the Company, and any other Person.
Signatures
appear on the following page
IN
WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed
by
their respective officers thereunto duly authorized, as of the day and
year
first above written.
WASHINGTON
TRUST BANCORP, INC.
By
/s/
John C. Warren
Name:
John C. Warren
Title:
Chairman and CEO
WILMINGTON
TRUST COMPANY, as Trustee
By
/s/
Christopher Monigle
Name:
Christopher Monigle
Title:
Assistant Vice President
FORM
OF FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE
[FORM
OF
FACE OF SECURITY]
THIS
SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE
UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT
INSURANCE CORPORATION.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON
WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS
ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A,
(D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S
UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES
ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY
OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY
IS NOT
PROHIBITED BY
SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE
OR
HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN
WILL
BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT
EITHER
(i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF
ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE
OR
OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR
ANY OTHER
PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN
TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR
WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN
A BLOCK
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE
DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED
BY THE
INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Fixed/Floating
Rate Junior Subordinated Deferrable Interest Debenture
of
Washington
Trust Bancorp, Inc.
August 29,
2005
Washington
Trust Bancorp, Inc., a Rhode Island corporation (the “Company” which term
includes any successor Person under the Indenture hereinafter referred
to), for
value received promises to pay to Wilmington Trust Company, not in its
individual capacity but solely as Institutional Trustee for WT Capital
Trust I (the “Holder”) or registered assigns, the principal sum of eight
million two hundred forty-eight thousand dollars ($8,248,000.00) on
September 15, 2035, and to pay interest on said principal sum from
August 29, 2005, or from the most recent Interest Payment Date (as
defined
below) to which interest has been paid or duly provided for, quarterly
(subject
to deferral as set forth herein) in arrears on March 15, June 15,
September 15 and December 15 of each year or if such day
is not a
Business Day, then the next succeeding Business Day (each such date, an
“Interest Payment Date”) (it being understood that interest accrues for any such
non-Business Day during the applicable Distribution Period, beginning on
or
after September 15, 2010), commencing on the Interest Payment Date
in
December 2005, at an annual rate equal to 5.965% beginning on (and including)
the date of original issuance and ending on (but excluding) the Interest
Payment
Date in September 2010 and at an annual rate for each successive period
beginning on (and including) the Interest Payment Date in September 2010,
and
each succeeding Interest Payment Date, and ending on (but excluding) the
next
succeeding Interest Payment Date (each a “Distribution Period”), equal to
3-Month LIBOR, determined as described below, plus 1.45% (the “Coupon Rate”),
applied to the principal amount hereof, until the principal hereof is paid
or
duly provided for or made available for payment, and on any overdue principal
and (without duplication and to the
extent
that payment of such interest is enforceable under applicable law) on
any
overdue installment of interest (including Additional Interest) at the
Interest
Rate in effect for each applicable period, compounded quarterly, from
the dates
such amounts are due until they are paid or made available for payment.
The
amount of interest payable (i) for any Distribution Period commencing
on or
after the date of original issuance but before the Interest Payment Date
in
September 2010 will be computed on the basis of a 360-day year of twelve
30-day
months, and (ii) for the Distribution Period commencing on the
Interest
Payment Date in September 2010 and each succeeding Distribution Period
will be
computed on the basis of the actual number of days in the Distribution
Period
concerned divided by 360. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided
in the
Indenture, be paid to the Person in whose name this Debenture (or one
or more
Predecessor Securities) is registered at the close of business on the
regular
record date for such interest installment, which shall be fifteen Business
Days
prior to the day on which the relevant Interest Payment Date occurs.
Any such
interest installment not so punctually paid or duly provided for shall
forthwith
cease to be payable to the Holder on such regular record date and may
be paid to
the Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record
date.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following
order of priority: (i) the rate (expressed as a percentage per annum) for
U.S.
dollar deposits having a three-month maturity that appears on Telerate
Page 3750
as of 11:00 a.m. (London time) on the related Determination Date (“Telerate Page
3750” means the display designated as “Page 3750” on the Moneyline Telerate
Service or such other page as may replace Page 3750 on that service or
such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate cannot
be
identified on the related Determination Date, the Trustee will request
the
principal London offices of four leading banks in the London interbank
market to
provide such banks’ offered quotations (expressed as percentages per annum) to
prime banks in the London interbank market for U.S. dollar deposits having
a
three-month maturity as of 11:00 a.m. (London time) on such Determination
Date.
If at least two quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations; (iii) if fewer than two such quotations
are
provided as requested in clause (ii) above, the Trustee will request four
major
New York City banks to provide such banks’ offered quotations (expressed as
percentages per annum) to leading European banks for loans in U.S. dollars
as of
11:00 a.m. (London time) on such Determination Date. If at least two such
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; and (iv) if fewer than two such quotations are provided
as
requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR
determined with respect to the Distribution Period immediately preceding
such
current Distribution Period. If the rate for U.S. dollar deposits having
a
three-month maturity that initially appears on Telerate Page 3750 as of
11:00
a.m. (London time) on the related Determination Date is superseded on the
Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such
Determination Date, then the corrected rate as so substituted on the applicable
page will be the applicable 3-Month LIBOR for such Determination Date.
As used
herein, “Determination Date” means the date that is two London Banking Days
(i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the commencement of
the
relevant Distribution Period.
The
Interest Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified
by
United States law.
All
percentages resulting from any calculations on the Debentures will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545%
(or
.09876545) being rounded to 9.87655% (or .0987655), and all
dollar
amounts used in or resulting from such calculation will be rounded to
the
nearest cent (with one-half cent being rounded upward)).
The
principal of and interest on this Debenture shall be payable at the office
or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States
of
America that at the time of payment is legal tender for payment of public
and
private debts;
provided
,
however
,
that
payment of interest may be made by check mailed to the registered holder
at such
address as shall appear in the Debenture Register if a request for a wire
transfer by such holder has not been received by the Company or by wire
transfer
to an account appropriately designated by the holder hereof. Notwithstanding
the
foregoing, so long as the holder of this Debenture is the Institutional
Trustee,
the payment of the principal of and interest on this Debenture will be
made in
immediately available funds at such place and to such account as may be
designated by the Trustee.
So
long
as no Acceleration Event of Default has occurred and is continuing, the
Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debentures by extending the
interest payment period on the Debentures at any time and from time to
time
during the term of the Debentures, for up to 20 consecutive quarterly
periods (each such extended interest payment period, an “Extension Period”),
during which Extension Period no interest (including Additional Interest)
shall
be due and payable (except any Additional Sums that may be due and payable).
No
Extension Period may end on a date other than an Interest Payment Date.
During
an Extension Period, interest will continue to accrue on the Debentures,
and
interest on such accrued interest will accrue at an annual rate equal to
the
Interest Rate in effect for such Extension Period, compounded quarterly
from the
date such interest would have been payable were it not for the Extension
Period,
to the extent permitted by law (such interest referred to herein as “Additional
Interest”). At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date;
provided
further
,
however
,
that
during any such Extension Period, the Company shall not and shall not permit
any
Affiliate to engage in any of the activities or transactions described
on the
reverse side hereof and in the Indenture. Prior to the termination of any
Extension Period, the Company may further extend such period, provided
that such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond
the Maturity Date. Upon the termination of any Extension Period and upon
the
payment of all accrued and unpaid interest and Additional Interest, the
Company
may commence a new Extension Period, subject to the foregoing requirements.
No
interest or Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that
would
otherwise have been due and payable during such Extension Period shall
bear
Additional Interest. The Company must give the Trustee notice of its election
to
begin or extend an Extension Period by the close of business at least 15
Business Days prior to the Interest Payment Date with respect to which
interest
on the Debentures would have been payable except for the election to begin
or
extend such Extension Period.
The
indebtedness evidenced by this Debenture is, to the extent provided in
the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness, and this Debenture is issued subject to
the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such
provisions,
(b) authorizes and directs the Trustee on his or her behalf to take
such
action as may be necessary or appropriate to acknowledge or effectuate
the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by
his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each
holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives
reliance by each such holder upon said provisions.
This
Debenture shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been signed by or on behalf of the
Trustee.
The
provisions of this Debenture are continued on the reverse side hereof and
such
provisions shall for all purposes have the same effect as though fully
set forth
at this place.
IN
WITNESS WHEREOF, the Company has duly executed this certificate.
WASHINGTON
TRUST BANCORP, INC.
By
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Debentures referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY, as Trustee
By:
Authorized
Officer
[FORM
OF
REVERSE OF DEBENTURE]
This
Debenture is one of the fixed/floating rate junior subordinated deferrable
interest debentures of the Company, all issued or to be issued under and
pursuant to the Indenture dated as of August 29, 2005 (the “Indenture”),
duly executed and delivered between the Company and the Trustee, to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee,
the
Company and the holders of the Debentures. The Debentures are limited in
aggregate principal amount as specified in the Indenture.
Upon
the
occurrence and continuation of a Special Event prior to the Interest Payment
Date in September 2010, the Company shall have the right to redeem the
Debentures in whole, but not in part, at any Interest Payment Date, within
120
days following the occurrence of such Special Event, at the Special Redemption
Price.
In
addition, the Company shall have the right to redeem the Debentures, in
whole or
in part, but in all cases in a principal amount with integral multiples
of
$1,000.00, on any Interest Payment Date on or after the Interest Payment
Date in
September 2010, at the Redemption Price.
Prior
to
10:00 a.m. New York City time on the Redemption Date or Special Redemption
Date,
as applicable, the Company will deposit with the Trustee or with one or
more
paying agents an amount of money sufficient to redeem on the Redemption
Date or
the Special Redemption Date, as applicable, all the Debentures so called
for
redemption at the appropriate Redemption Price or Special Redemption
Price.
If
all,
or less than all, the Debentures are to be redeemed, the Company will give
the
Trustee notice not less than 45 nor more than 60 days, respectively,
prior
to the Redemption Date or Special Redemption Date, as applicable, as to
the
aggregate principal amount of Debentures to be redeemed and the Trustee
shall
select, in such manner as in its sole discretion it shall deem appropriate
and
fair, the Debentures or portions thereof (in integral multiples of $1,000.00)
to
be redeemed.
Notwithstanding
the foregoing, any redemption of Debentures by the Company shall be subject
to
the receipt of any and all required regulatory approvals.
In
case
an Acceleration Event of Default shall have occurred and be continuing,
upon
demand of the Trustee, the principal of all of the Debentures shall become
due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of not less than a majority in aggregate principal
amount
of the Debentures at the time outstanding, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures;
provided
,
however
,
that no
such supplemental indenture shall without the consent of the holders of
each
Debenture then outstanding and affected thereby (i) change the fixed
maturity of any Debenture, or reduce the principal amount thereof or any
premium
thereon, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof or make the principal
thereof
or any interest or premium thereon payable in any coin or currency other
than
that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right
of
repayment, if any, at the option of the holder, or (ii) reduce the
aforesaid percentage of Debentures the holders of which are required to
consent
to any such supplemental indenture.
The
Indenture also contains provisions permitting the holders of a majority
in
aggregate principal amount of the Debentures at the time outstanding on
behalf
of the holders of all of the Debentures to waive (or modify any previously
granted waiver of) any past default or Event of Default, and its consequences,
except a default (a) in the payment of principal of, premium, if
any, or
interest on any of the Debentures, (b) in respect of covenants or
provisions hereof or of the Indenture which cannot be modified or amended
without the consent of the holder of each Debenture affected, or (c) in
respect of the covenants contained in Section 3.9 of the Indenture;
provided
,
however
,
that if
the Debentures are held by the Trust or a trustee of such trust, such waiver
or
modification to such waiver shall not be effective until the holders of
a
majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver,
provided
,
further
,
that if
the consent of the holder of each outstanding Debenture is required, such
waiver
shall not be effective until each holder of the Trust Securities of the
Trust
shall have consented to such waiver. Upon any such waiver, the default
covered
thereby shall be deemed to be cured for all purposes of the Indenture and
the
Company, the Trustee and the holders of the Debentures shall be restored
to
their former positions and rights hereunder, respectively; but no such
waiver
shall extend to any subsequent or other default or Event of Default or
impair
any right consequent thereon. Whenever any default or Event of Default
hereunder
shall have been waived as permitted by the Indenture, said default or Event
of
Default shall for all purposes of the Debentures and the Indenture be deemed
to
have been cured and to be not continuing.
No
reference herein to the Indenture and no provision of this Debenture or
of the
Indenture shall alter or impair the obligation of the Company, which is
absolute
and unconditional, to pay the principal of and premium, if any, and interest,
including Additional Interest, on this Debenture at the time and place
and at
the rate and in the money herein prescribed.
The
Company has agreed that if Debentures are initially issued to the Trust
or a
trustee of such Trust in connection with the issuance of Trust Securities
by the
Trust (regardless of whether Debentures continue to be held by such Trust)
and
(i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment
of any
obligations under the Capital Securities Guarantee, or (iii) the
Company
shall have given notice of its election to defer payments of interest on
the
Debentures by extending the interest payment period as provided herein
and such
Extension Period, or any extension thereof, shall be continuing, then the
Company shall not, and shall not allow any Affiliate of the Company to,
(x) declare or pay any dividends or distributions on, or redeem,
purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or its Affiliates’ capital stock (other than payments of dividends
or distributions to the Company) or make any guarantee payments with respect
to
the foregoing or (y) make any payment of principal of or interest
or
premium, if any, on or repay, repurchase or redeem any debt securities
of the
Company or any Affiliate that rank
pari
passu
in all
respects with or junior in interest to the Debentures (other than, with
respect
to clauses (x) and (y) above, (1) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with
any
employment contract, benefit plan or other similar arrangement with or
for the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan
or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration
in an
acquisition transaction entered into prior to the applicable Extension
Period,
if any, (2) as a result of any exchange or conversion of any class
or
series of the Company’s capital stock (or any capital stock of a subsidiary of
the Company) for any class or series of the Company’s capital stock or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s capital stock, (3) the purchase of fractional interests in shares
of the Company’s capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, (4) any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto, (5) any
dividend in the form of stock, warrants, options or other rights where
the
dividend
stock or the stock issuable upon exercise of such warrants, options or
other
rights is the same stock as that on which the dividend is being paid
or ranks
pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares
issued
in connection therewith, or (6) payments under the Capital Securities
Guarantee).
The
Debentures are issuable only in registered, certificated form without coupons
and in minimum denominations of $100,000.00 and any multiple of $1,000.00
in
excess thereof. As provided in the Indenture and subject to the transfer
restrictions and limitations as may be contained herein and therein from
time to
time, this Debenture is transferable by the holder hereof on the Debenture
Register of the Company. Upon due presentment for registration of transfer
of
any Debenture at the Principal Office of the Trustee or at any office or
agency
of the Company maintained for such purpose as provided in Section 3.2
of
the Indenture, the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate
and make
available for delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. All Debentures presented
for
registration of transfer or for exchange or payment shall (if so required
by the
Company or the Trustee or the Authenticating Agent) be duly endorsed by,
or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to, the Company and the Trustee or the Authenticating Agent
duly
executed by the holder or his attorney duly authorized in writing. No service
charge shall be made for any exchange or registration of transfer of Debentures,
but the Company or the Trustee may require payment of a sum sufficient
to cover
any tax, fee or other governmental charge that may be imposed in connection
therewith.
Prior
to
due presentment for registration of transfer of any Debenture, the Company,
the
Trustee, any Authenticating Agent, any paying agent, any transfer agent
and any
Debenture registrar may deem the Person in whose name such Debenture shall
be
registered upon the Debenture Register to be, and may treat him as, the
absolute
owner of such Debenture (whether or not such Debenture shall be overdue)
for the
purpose of receiving payment of or on account of the principal of, premium,
if
any, and interest on such Debenture and for all other purposes; and neither
the
Company nor the Trustee nor any Authenticating Agent nor any paying agent
nor
any transfer agent nor any Debenture registrar shall be affected by any
notice
to the contrary. All such payments so made to any holder for the time being
or
upon his order shall be valid, and, to the extent of the sum or sums so
paid,
effectual to satisfy and discharge the liability for moneys payable upon
any
such Debenture.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of
the
Company in the Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, officer or
director, as such, past, present or future, of the Company or of any successor
Person of the Company, either directly or through the Company or any successor
Person of the Company, whether by virtue of any constitution, statute or
rule of
law, or by the enforcement of any assessment or penalty or otherwise, it
being
expressly understood that all such liability is hereby expressly waived
and
released as a condition of, and as a consideration for, the execution of
the
Indenture and the issue of the Debentures.
Capitalized
terms used and not defined in this Debenture shall have the meanings assigned
in
the Indenture dated as of the date of original issuance of this Debenture
between the Trustee and the Company.
THE
INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES THEREOF.
EXHIBIT
B
FORM
OF CERTIFICATE TO TRUSTEE
Pursuant
to Section 3.5 of the Indenture between Washington Trust Bancorp, Inc.,
as the
Company (the “Company”), and Wilmington Trust Company, as Trustee, dated as of
August 29, 2005 (the “Indenture”), the undersigned hereby certifies as
follows:
|
|
1.
|
In
my capacity as an officer of the Company, I would normally have
knowledge
of any default by the Company during the last fiscal year in
the
performance of any covenants of the Company contained in the
Indenture.
|
|
|
2.
|
[To
my knowledge, the Company is not in default in the performance
of any
covenants contained in the
Indenture.
|
or,
alternatively:
I
am
aware of the default(s) in the performance of covenants in the Indentures,
as
specified below.]
Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings ascribed thereto in the Indenture.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate.
Date:
______________________________
Name:
Title:
Exhibit 10.3
_________________________________________________
GUARANTEE
AGREEMENT
by
and between
WASHINGTON
TRUST BANCORP, INC.
and
WILMINGTON
TRUST COMPANY
Dated
as of August 29, 2005
_________________________________________________
GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (this “Guarantee”), dated as of August 29, 2005, is executed
and delivered by Washington Trust Bancorp, Inc., a Rhode Island corporation
(the
“Guarantor”), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined
herein) from time to time of the Capital Securities (as defined herein) of
WT
Capital Trust I, a Delaware statutory trust (the “Issuer”).
WHEREAS,
pursuant to an Amended and Restated Declaration of Trust (the “Declaration”),
dated as of the date hereof among Wilmington Trust Company, not in its
individual capacity but solely as institutional trustee, the administrators
of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof those undivided beneficial interests,
having an aggregate liquidation amount of $8,000,000.00 (the “Capital
Securities”); and
WHEREAS,
as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Guarantee, to pay to the Holders of Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms
and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the purchase by each Holder of the Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1.
Definitions
and Interpretation.
In
this
Guarantee, unless the context otherwise requires:
(a)
capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b)
a
term
defined anywhere in this Guarantee has the same meaning throughout;
(c)
all
references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;
(d)
all
references in this Guarantee to “Articles” or “Sections” are to Articles or
Sections of this Guarantee, unless otherwise specified;
(e)
terms
defined in the Declaration as at the date of execution of this Guarantee have
the same meanings when used in this Guarantee, unless otherwise defined in
this
Guarantee or unless the context otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
“Affiliate”
has the
same meaning as given to that term in Rule 405 of the Securities Act of 1933,
as
amended, or any successor rule thereunder.
“Beneficiaries”
means
any Person to whom the Issuer is or hereafter becomes indebted or
liable.
“Capital
Securities”
has the
meaning set forth in the recitals to this Guarantee.
“Common
Securities”
means
the common securities issued by the Issuer to the Guarantor pursuant to the
Declaration.
“Corporate
Trust Office”
means
the office of the Guarantee Trustee at which the corporate trust business of
the
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Guarantee is located at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600,
Attention: Corporate Trust Administration.
“Covered
Person”
means
any Holder of Capital Securities.
“Debentures”
means
the debt securities of the Guarantor designated the Fixed/Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2035 held by the Institutional
Trustee (as defined in the Declaration) of the Issuer.
“Declaration
Event of Default”
means an
“Event of Default” as defined in the Declaration.
“Event
of Default”
has the
meaning set forth in Section 2.4(a).
“Guarantee
Payments”
means
the following payments or distributions, without duplication, with respect
to
the Capital Securities, to the extent not paid or made by the Issuer: (i) any
accrued and unpaid Distributions (as defined in the Declaration) which are
required to be paid on such Capital Securities to the extent the Issuer shall
have funds available therefor, (ii) the Redemption Price to the extent the
Issuer has funds available therefor, with respect to any Capital Securities
called for redemption by the Issuer, (iii) the Special Redemption Price to
the
extent the Issuer has funds available therefor, with respect to Capital
Securities redeemed upon the occurrence of a Special Event, and (iv) upon a
voluntary or involuntary liquidation, dissolution, winding-up or termination
of
the Issuer (other than in connection with the distribution of Debentures to
the
Holders of the Capital Securities in exchange therefor as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and
all
accrued and unpaid Distributions on the Capital Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and
(b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the “Liquidation
Distribution”).
“Guarantee
Trustee”
means
Wilmington Trust Company, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee and
thereafter means each such Successor Guarantee Trustee.
“Guarantor”
means
Washington Trust Bancorp, Inc. and each of its successors and
assigns.
“Holder”
means
any holder, as registered on the books and records of the Issuer, of any Capital
Securities; provided, however, that, in determining whether the Holders of
the
requisite percentage of Capital Securities have given any request, notice,
consent or waiver hereunder, “Holder” shall not include the Guarantor or any
Affiliate of the Guarantor.
“Indemnified
Person”
means
the Guarantee Trustee, any Affiliate of the Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
“Indenture”
means
the Indenture dated as of the date hereof between the Guarantor and Wilmington
Trust Company, not in its individual capacity but solely as trustee, and any
indenture
supplemental
thereto pursuant to which the Debentures are to be issued to the institutional
trustee of the Issuer.
“Issuer”
has the
meaning set forth in the opening paragraph to this Guarantee.
“Liquidation
Distribution”
has the
meaning set forth in the definition of “Guarantee Payments” herein.
“Majority
in liquidation amount of the Capital Securities”
means
Holder(s) of outstanding Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid
on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to
the date upon which the voting percentages are determined) of all Capital
Securities then outstanding.
“Obligations”
means
any costs, expenses or liabilities (but not including liabilities related to
taxes) of the Issuer other than obligations of the Issuer to pay to holders
of
any Trust Securities the amounts due such holders pursuant to the terms of
the
Trust Securities.
“Officer’s
Certificate”
means,
with respect to any Person, a certificate signed by one Authorized Officer
of
such Person. Any Officer’s Certificate delivered with respect to compliance with
a condition or covenant provided for in this Guarantee shall
include:
(a)
a
statement that the officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by the officer in rendering the Officer’s Certificate;
(c)
a
statement that the 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 the officer, such condition or
covenant has been complied with.
“Person”
means a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
“Redemption
Price”
has the
meaning set forth in the Indenture.
“Responsible
Officer”
means,
with respect to the Guarantee Trustee, any officer within the Corporate Trust
Office of the Guarantee Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer of the Guarantee
Trustee customarily performing functions similar to those performed by any
of
the above designated officers and also, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
that
officer’s knowledge of and familiarity with the particular subject.
“Special
Event”
has the
meaning set forth in the Indenture.
“Special
Redemption Price”
has the
meaning set forth in the Indenture.
“Successor
Guarantee Trustee”
means a
successor Guarantee Trustee possessing the qualifications to act as Guarantee
Trustee under Section 3.1.
“Trust
Securities”
means
the Common Securities and the Capital Securities.
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF
GUARANTEE
TRUSTEE
Section
2.1.
Powers
and Duties of the Guarantee Trustee.
(a)
This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Capital Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Capital Securities exercising his
or
her rights pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b)
If
an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce
this
Guarantee for the benefit of the Holders of the Capital Securities.
(c)
The
Guarantee Trustee, before the occurrence of any Event of Default and after
curing all Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee, and no implied
covenants shall be read into this Guarantee against the Guarantee Trustee.
In
case an Event of Default has occurred (that has not been waived pursuant to
Section 2.4) and is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee, and use the same degree of care and skill in
its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d)
No
provision of this Guarantee shall be construed to relieve the Guarantee 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 Guarantee Trustee shall be determined solely
by
the express provisions of this Guarantee, and the Guarantee Trustee shall not
be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B)
in
the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee 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 Guarantee Trustee and conforming to the requirements of this Guarantee;
but
in the
case
of
any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they conform
to
the requirements of this Guarantee;
(ii)
the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii)
the
Guarantee 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 written direction
of the Holders of not less than 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 Guarantee Trustee, or relating to the exercise
of any trust or power conferred upon the Guarantee Trustee under this Guarantee;
and
(iv)
no
provision of this Guarantee shall require the Guarantee 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 Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the
terms
of this Guarantee or security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured
to
it.
Section
2.2.
Certain
Rights of Guarantee Trustee.
(a)
Subject
to the provisions of Section 2.1:
(i)
The
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by
the
proper party or parties.
(ii)
Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.
(iii)
Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence
is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv)
The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any re-recording, refiling or re-registration
thereof).
(v)
The
Guarantee Trustee may consult with counsel of its selection, and the advice
or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any
of
its
Affiliates and may include any of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the administration
of
this Guarantee from any court of competent jurisdiction.
(vi)
The
Guarantee Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided,
however, that nothing contained in this Section 2.2(a)(vi) shall relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Guarantee.
(vii)
The
Guarantee Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii)
The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
with
due care by it hereunder.
(ix)
Any
action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Capital Securities, and the signature of the Guarantee Trustee
or
its agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee’s or its agent’s taking such action.
(x)
Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the Capital
Securities, (ii) may refrain from enforcing such remedy or right or taking
such
other action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such
instructions.
(xi)
The
Guarantee Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Guarantee.
(b)
No
provision of this Guarantee shall be deemed to impose any duty or obligation
on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which
it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or acts
or
to exercise any such right, power, duty or obligation. No permissive power
or
authority available to the Guarantee Trustee shall be construed to be a
duty.
Section
2.3.
Not
Responsible for Recitals or Issuance of Guarantee.
The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
Section
2.4.
Events
of Default; Waiver.
(a)
An
Event
of Default under this Guarantee will occur upon the failure of the Guarantor
to
perform any of its payment or other obligations hereunder.
(b)
The
Holders of a Majority in liquidation amount of the Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and shall be deemed
to
have been cured, for every purpose of this Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Section
2.5.
Events
of Default; Notice.
(a)
The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Capital Securities and the Guarantor, notices of all Events of Default actually
known to a Responsible Officer of the Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided, however, that the
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Guarantee Trustee in good faith determines
that
the withholding of such notice is in the interests of the Holders of the Capital
Securities.
(b)
The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice from the
Guarantor or a Holder of the Capital Securities (except in the case of a payment
default), or a Responsible Officer of the Guarantee Trustee charged with the
administration of this Guarantee shall have obtained actual knowledge
thereof.
ARTICLE
III
GUARANTEE
TRUSTEE
Section
3.1.
Guarantee
Trustee; Eligibility.
(a)
There
shall at all times be a Guarantee Trustee which shall:
(i)
not
be an
Affiliate of the Guarantor, and
(ii)
be
a
corporation organized and doing business under the laws of the United States
of
America or any State or Territory thereof or of the District of Columbia, or
Person authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes
of
this Section 3.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published.
(b)
If
at any
time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with
the effect set out in Section 3.2(c).
(c)
If
the
Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to this Guarantee.
Section
3.2.
Appointment,
Removal and Resignation of Guarantee Trustee.
(a)
Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b)
The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until
a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c)
The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d)
If
no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within 60 days after delivery of an instrument
of removal or resignation, the Guarantee Trustee resigning or being removed
may
petition any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e)
No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f)
Upon
termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued
to
the date of such termination, removal or resignation.
ARTICLE
IV
GUARANTEE
Section
4.1.
Guarantee.
(a)
The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by
the
Issuer), as and when due, regardless of any defense (except the defense of
payment by the Issuer), right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor’s obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the
Holders.
(b)
The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer
and
in the event any such Obligation is not so assumed, subject to the terms and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any and
all
Obligations to such Beneficiaries. This Guarantee is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
Section
4.2.
Waiver
of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
Section
4.3.
Obligations
Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a)
the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term
or
condition relating to the Capital Securities to be performed or observed by
the
Issuer;
(b)
the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Special Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of or in connection with, the Capital Securities (other than an
extension of time for payment of Distributions, Redemption Price, Special
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Debentures or any
extension of the maturity date of the Debentures permitted by the
Indenture);
(c)
any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred
on
the Holders pursuant to the terms of the Capital Securities, or any action
on
the part of the Issuer granting indulgence or extension of any
kind;
(d)
the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e)
any
invalidity of, or defect or deficiency in, the Capital Securities;
(f)
the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g)
any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain consent
of,
the Guarantor with respect to the happening of any of the
foregoing.
Section
4.4.
Rights
of Holders.
(a)
The
Holders of a Majority in liquidation amount of the Capital Securities have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee; provided, however, that (subject to Section 2.1) the
Guarantee Trustee shall have the right to decline to follow any such direction
if the Guarantee Trustee being advised by counsel determines that the action
or
proceeding so directed may not lawfully be taken or if the Guarantee Trustee
in
good faith by its board of directors or trustees, executive committees or a
trust committee of directors or trustees and/or Responsible Officers shall
determine that the action or proceedings so directed would involve the Guarantee
Trustee in personal liability.
(b)
Any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy to require
that any such action be brought first against the Issuer, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.
Section
4.5.
Guarantee
of Payment.
This
Guarantee creates a guarantee of payment and not of collection.
Section
4.6.
Subrogation.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Issuer in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation
or
any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if, after giving effect to any such payment,
any
amounts are due and unpaid under this Guarantee. If any amount shall be paid
to
the Guarantor in violation of the preceding sentence, the Guarantor agrees
to
hold such amount in trust for the Holders and to pay over such amount to the
Holders.
Section
4.7.
Independent
Obligations.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Capital Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
Section
4.8.
Enforcement
by a Beneficiary.
A
Beneficiary may enforce the obligations of the Guarantor contained in Section
4.1(b) directly against the Guarantor and the Guarantor waives any right or
remedy to require that any action be brought against the Issuer or any other
person or
entity
before proceeding against the Guarantor. The Guarantor shall be subrogated
to
all rights (if any) of any Beneficiary against the Issuer in respect of any
amounts paid to the Beneficiaries by the Guarantor under this Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee,
if at
the time of any such payment, and after giving effect to such payment, any
amounts are due and unpaid under this Guarantee.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
Section
5.1.
Limitation
of Transactions.
So
long
as any Capital Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or a Declaration Event of Default or
(b)
the Guarantor shall have selected an Extension Period as provided in the
Declaration and such period, or any extension thereof, shall have commenced
and
be continuing, then the Guarantor shall not and shall not permit any Affiliate
to (x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Guarantor’s
or such Affiliate’s capital stock (other than payments of dividends or
distributions to the Guarantor) or make any guarantee payments with respect
to
the foregoing or (y) make any payment of principal of or interest or premium,
if
any, on or repay, repurchase or redeem any debt securities of the Guarantor
or
any Affiliate that rank pari passu in all respects with or junior in interest
to
the Debentures (other than, with respect to clauses (x) and (y) above, (i)
repurchases, redemptions or other acquisitions of shares of capital stock of
the
Guarantor in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Guarantor (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior
to the occurrence of the Event of Default, Declaration Event of Default or
Extension Period, as applicable, (ii) as a result of any exchange or conversion
of any class or series of the Guarantor’s capital stock (or any capital stock of
a subsidiary of the Guarantor) for any class or series of the Guarantor’s
capital stock or of any class or series of the Guarantor’s indebtedness for any
class or series of the Guarantor’s capital stock, (iii) the purchase of
fractional interests in shares of the Guarantor’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) any declaration of a dividend in connection with
any stockholders’ rights plan, or the issuance of rights, stock or other
property under any stockholders’ rights plan, or the redemption or repurchase of
rights pursuant thereto, (v) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that
on
which the dividend is being paid or ranks pari passu with or junior to such
stock and any cash payments in lieu of fractional shares issued in connection
therewith, or (vi) payments under this Guarantee).
Section
5.2.
Ranking.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will
rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance
thereof, each Holder of Capital Securities agrees to the foregoing provisions
of
this Guarantee and the other terms set forth herein.
The
right
of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary’s liquidation or reorganization or
otherwise is subject to the prior claims of creditors of that subsidiary, except
to the extent the Guarantor may itself be recognized as a creditor of that
subsidiary. Accordingly, the Guarantor’s obligations under this Guarantee will
be effectively
subordinated
to all existing and future liabilities of the Guarantor’s subsidiaries, and
claimants should look only to the assets of the Guarantor for payments
hereunder. This Guarantee does not limit the incurrence or issuance of other
secured or unsecured debt of the Guarantor, including Senior Indebtedness of
the
Guarantor, under any indenture that the Guarantor may enter into in the future
or otherwise.
ARTICLE
VI
TERMINATION
Section
6.1.
Termination.
This
Guarantee shall terminate as to the Capital Securities (i) upon full payment
of
the Redemption Price or Special Redemption Price of all Capital Securities
then
outstanding, (ii) upon the distribution of all of the Debentures to the Holders
of all of the Capital Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon dissolution of the Issuer.
This
Guarantee will continue to be effective or will be reinstated, as the case
may
be, if at any time any Holder of Capital Securities must restore payment of
any
sums paid under the Capital Securities or under this Guarantee.
ARTICLE
VII
INDEMNIFICATION
Section
7.1.
Exculpation.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or
by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person’s negligence or willful
misconduct with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person
as
to matters the Indemnified Person reasonably believes are within such other
Person’s professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Capital Securities might properly be paid.
Section
7.2.
Indemnification.
(a)
The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on the part of
the
Indemnified Person, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including, but not limited
to,
the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person’s powers or duties hereunder. The obligation to indemnify as
set forth in this Section 7.2 shall survive the resignation or removal of the
Guarantee Trustee and the termination of this Guarantee.
(b)
Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of
the
commencement of any action, such Indemnified Person will, if a claim in respect
thereof is to be made against the Guarantor under this Section 7.2, notify
the
Guarantor in writing of the commencement thereof; but the failure so to notify
the Guarantor (i) will not relieve the Guarantor from liability under paragraph
(a) above unless and to the extent that the Guarantor did not otherwise learn
of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor shall
be entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s
expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter
be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person or Persons except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding the Guarantor’s election to appoint counsel to represent the
Guarantor in an action, the Indemnified Person shall have the right to employ
separate counsel (including local counsel), and the Guarantor shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of
counsel chosen by the Guarantor to represent the Indemnified Person would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it and/or other
Indemnified Person(s) which are different from or additional to those available
to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or
(iv)
the Guarantor shall authorize the Indemnified Person to employ separate counsel
at the expense of the Guarantor. The Guarantor will not, without the prior
written consent of the Indemnified Persons, settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Persons are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action, suit or proceeding.
Section
7.3.
Compensation;
Reimbursement of Expenses.
The
Guarantor agrees:
(a)
to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to 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); and
(b)
except
as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or
made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.
For
purposes of clarification, this Section 7.3 does not contemplate the payment
by
the Guarantor of acceptance or annual administration fees owing to the Guarantee
Trustee for services to be provided by the Guarantee Trustee under this
Guarantee or the fees and expenses of the Guarantee Trustee’s counsel in
connection with the closing of the transactions contemplated by this Guarantee.
The provisions of this Section 7.3 shall survive the resignation or removal
of
the Guarantee Trustee and the termination of this Guarantee.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1.
Successors
and Assigns.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with any merger or consolidation of the Guarantor with
or
into another entity or any sale, transfer or lease of the Guarantor’s assets to
another entity, in each case, to the extent permitted under the Indenture,
the
Guarantor may not assign its rights or delegate its obligations under this
Guarantee without the prior approval of the Holders of at least a Majority
in
liquidation amount of the Capital Securities.
Section
8.2.
Amendments.
Except
with respect to any changes that do not adversely affect the rights of Holders
of the Capital Securities in any material respect (in which case no consent
of
Holders will be required), this Guarantee may be amended only with the prior
approval of the Holders of not less than a Majority in liquidation amount of
the
Capital Securities. The provisions of the Declaration with respect to amendments
thereof apply to the giving of such approval.
Section
8.3.
Notices.
All
notices provided for in this Guarantee shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:
(a)
If
given
to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to
the
Holders of the Capital Securities and the Guarantor):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention:
Corporate Trust Administration
Telecopy:
302-636-4140
(b)
If
given
to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee):
Washington
Trust Bancorp, Inc.
23
Broad
Street
Westerly,
Rhode Island 02891
Attention:
David V. Devault
Telecopy:
401-348-1565
(c)
If
given
to any Holder of the Capital Securities, at the address set forth on the books
and records of the Issuer.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
Section
8.4.
Benefit.
This
Guarantee is solely for the benefit of the Beneficiaries and, subject to Section
2.1(a), is not separately transferable from the Capital Securities.
Section
8.5.
Governing
Law.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Section
8.6.
Counterparts.
This
Guarantee may be executed in one or more counterparts, each of which shall
be an
original, but all of which taken together shall constitute one and the same
instrument.
Section
8.7
Separability.
In
case
one or more of the provisions contained in this Guarantee shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Guarantee, but this Guarantee shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein.
Signatures
appear on the following page
THIS
GUARANTEE is executed as of the day and year first above written.
WASHINGTON
TRUST BANCORP, INC., as Guarantor
By:
/s/
John C. Warren
Name:
John C. Warren
Title:
Chairman and CEO
WILMINGTON
TRUST COMPANY, as Guarantee Trustee
By:
/s/
Christopher Monigle
Name:
Christopher Monigle
Title:
Assistant Vice President
Exhibit 10.4
Certificate
Number P-1
8,000
Capital Securities
This
security has not been registered under the securities act of 1933, as amended
(the “securities act”), any state securities laws or any other applicable
securities law. Neither this security nor any interest or participation herein
may be reoffered, sold, assigned, transferred, pledged, encumbered or otherwise
disposed of in the absence of such registration or unless such transaction
is
exempt from, or not subject to, the registration requirements of the securities
act and any applicable state securities laws. The holder of this security
by its
acceptance hereof agrees to offer, sell or otherwise transfer this security
only
(a) to the sponsor or the trust, (b) pursuant to a registration
statement that has been declared effective under the securities act, (c) to
a person whom the seller reasonably believes is a qualified institutional
buyer
in a transaction meeting the requirements of rule 144a so long as
this
security is eligible for resale pursuant to rule 144a in accordance
with
rule 144a, (d) to a non-u.s. person in an offshore transaction
in
accordance with rule 903 or rule 904 (as applicable) of
regulation s under the securities act, (e) to an institutional
“accredited investor” within the meaning of subparagraph (a) of
rule 501 under the securities act that is acquiring this capital security
for its own account, or for the account of such an institutional accredited
investor for investment purposes and not with a view to, or for offer or
sale in
connection with, any distribution in violation of the securities act, or
(f) pursuant to any other available exemption from the registration
requirements of the securities act, subject to the sponsor’s and the trust’s
right prior to any such offer, sale or transfer to require the delivery of
an
opinion of counsel, certification and/or other information satisfactory to
each
of them in accordance with the declaration of trust, a copy of which may
be
obtained from the sponsor or the trust. Hedging transactions involving this
security may not be conducted unless in compliance with the securities
act.
The
holder of this security by its acceptance hereof also agrees, represents
and
warrants that it is not an employee benefit, individual retirement account
or
other plan or arrangement 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”), or an entity
whose underlying assets include “plan assets” by reason of any plan’s investment
in the entity, and no person investing “plan assets” of any plan may acquire or
hold the securities or any interest therein, unless such purchaser or holder
is
eligible for exemptive relief available under u.s. department of labor
prohibited transaction class exemption 96-23, 95-60, 91-38, 90-1 or 84-14
or
another applicable exemption or its purchase and holding of this security
is not
prohibited by section 406 of erisa or section 4975 of the code with respect
to
such purchase or holding. any purchaser or holder of the securities or any
interest therein will be deemed to have represented by its purchase and holding
thereof that either (i) it is not an employee benefit plan within the meaning
of
section 3(3) of erisa, or a plan to which section 4975 of the code is
applicable, a trustee or other person acting on behalf of an employee benefit
plan or plan, or any other person or entity using the assets of any employee
benefit plan or plan to finance such purchase, or (ii) such purchase will
not
result in a prohibited transaction under section 406 of erisa or section
4975 of
the code for which there is no applicable statutory or administrative
exemption.
This
security will be issued and may be transferred only in blocks having a
liquidation amount of not less than $100,000.00 (100 securities) and multiples
of $1,000.00 in excess thereof. Any attempted transfer of securities in a
block
having a liquidation amount of less than $100,000.00 shall be deemed to be
void
and of no legal effect whatsoever.
The
holder of this security agrees that it will comply with the foregoing
restrictions.
In
connection with any transfer, the holder will deliver to the registrar and
transfer agent such certificates and other information as may be required
by the
Declaration to confirm that the transfer complies with the foregoing
restrictions.
August 29,
2005
Certificate
Evidencing Fixed/Floating Rate Capital Securities
of
WT Capital
Trust I
(liquidation
amount $1,000 per Capital Security)
WT Capital
Trust I, a statutory trust created under the laws of the State of
Delaware
(the “Trust”), hereby certifies that First Tennessee Bank National Association
is the registered owner of capital securities of the Trust representing
undivided beneficial interests in the assets of the Trust, (liquidation amount
$1,000 per capital security) (the “Capital Securities”). Subject to the
Declaration (as defined below), the Capital Securities are transferable on
the
books and records of the Trust in person or by a duly authorized attorney,
upon
surrender of this Certificate duly endorsed and in proper form for transfer.
The
Capital Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities shall in all respects be subject to,
the
provisions of the Amended and Restated Declaration of Trust of the Trust
dated
as of August 29, 2005, among David V. Devault, John C.
Warren and
John F. Treanor, as Administrators, Wilmington Trust Company, as Delaware
Trustee, Wilmington Trust Company, as Institutional Trustee, Washington Trust
Bancorp, Inc., as Sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation
of
the terms of the Capital Securities as set forth in Annex I to such
amended
and restated declaration as the same may be amended from time to time (the
“Declaration”). Capitalized terms
used
herein but not defined shall have the meaning given them in the Declaration.
The
Holder is entitled to the benefits of the Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the Guarantee,
and
the Indenture to the Holder without charge upon written request to the
Sponsor
at its principal place of business.
Upon
receipt of this Security, the Holder is bound by the Declaration and is entitled
to the benefits thereunder.
By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures.
This
Capital Security is governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to principles of conflict of
laws.
Signature
appears on following page
IN
WITNESS WHEREOF, the Trust has duly executed
this certificate.
WT
CAPITAL TRUST I
By:
/s/
David V. Devault
Name:
David V. Devault
Title:
Administrator
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Capital Securities referred to in the within-mentioned
Declaration.
WILMINGTON
TRUST COMPANY,
as
the
Institutional Trustee
By:
/s/
Christopher Monigle
Authorized
Officer
REVERSE
OF CAPITAL SECURITY
Distributions
payable on each Capital Security will be payable at an annual rate equal
to
5.965% beginning on (and including) the date of original issuance and ending
on
(but excluding) the Distribution Payment Date in September 2010 and at an
annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in September 2010, and each succeeding Distribution Payment
Date,
and ending on (but excluding) the next succeeding Distribution Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 1.45% (the “Coupon Rate”), applied to the stated liquidation amount
of $1,000.00 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions
in
arrears will bear interest thereon compounded quarterly at the Distribution
Rate
(to the extent permitted by applicable law). The term “Distributions” as used
herein includes cash distributions and any such compounded distributions
unless
otherwise noted. A Distribution is payable only to the extent that payments
are
made in respect of the Debentures held by the Institutional Trustee and to
the
extent the Institutional Trustee has funds available therefor. As used herein,
“Determination Date” means the date that is two London Banking Days (i.e., a
business day in which dealings in deposits in U.S. dollars are transacted
in the
London interbank market) preceding the commencement of the relevant Distribution
Period. The amount of the Distribution payable (i) for any Distribution
Period commencing on or after the date of original issuance but before the
Distribution Payment Date in September 2010 will be computed on the basis
of a
360-day year of twelve 30-day months, and (ii) for the Distribution
Period
commencing on the Distribution Payment Date in September 2010 and each
succeeding Distribution Period will be calculated by applying the Distribution
Rate to the stated liquidation amount outstanding at the commencement of
the
Distribution Period on the basis of the actual number of days in the
Distribution Period concerned divided by 360.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Debenture Trustee in the
following order of priority: (i) the rate (expressed as a percentage per
annum)
for U.S. dollar deposits having a three-month maturity that appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related Determination Date
(“Telerate Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate Service or such other page as may replace Page 3750 on
that
service or such other service or services as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Debenture Trustee
will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London time)
on
such Determination Date. If at least two quotations are provided, 3-Month
LIBOR
will be the arithmetic mean of such quotations; (iii) if fewer than
two
such quotations are provided as requested in clause (ii) above, the Debenture
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month
LIBOR
will be the arithmetic mean of such quotations; and (iv) if fewer
than two
such quotations are provided as requested in clause (iii) above, 3-Month
LIBOR
will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period. If the rate for U.S.
dollar deposits having a three-month maturity that initially appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related Determination Date
is
superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London
time) on such Determination Date, then the corrected rate as so substituted
on
the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.
The
Distribution Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Capital Securities will
be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all
dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15
and
December 15 of each year or if any such day is not a Business Day,
then the
next succeeding Business Day (each such day, a “Distribution Payment Date”),
commencing on the Distribution Payment Date in December 2005. The Debenture
Issuer has the right under the Indenture to defer payments of interest on
the
Debentures, so long as no Acceleration Event of Default has occurred and
is
continuing, by extending the interest payment period for up to 20 consecutive
quarterly periods (each an “Extension Period”) at any time and from time to time
on the Debentures, subject to the conditions described below, during which
Extension Period no interest shall be due and payable. During any Extension
Period, interest will continue to accrue on the Debentures, and interest
on such
accrued interest will accrue at an annual rate equal to the Distribution
Rate in
effect for each such Extension Period, compounded quarterly from the date
such
interest would have been payable were it not for the Extension Period, to
the
extent permitted by law (such interest referred to herein as “Additional
Interest”). No Extension Period may end on a date other than a Distribution
Payment Date. At the end of any such Extension Period, the Debenture Issuer
shall pay all interest then accrued and unpaid on the Debentures (together
with
Additional Interest thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date. Prior to the termination
of any Extension Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and further
consecutive extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest
and
Additional Interest, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest or Additional Interest
shall
be due and payable during an Extension Period, except at the end thereof,
but
each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Capital Securities shall be deferred
for
a period equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, to Holders of the Securities as they appear on the books and
records
of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect
to any
Extension Period) to the extent that the Trust has funds available for the
payment of such distributions in the Property Account of the Trust. The Trust’s
funds available for Distribution to the Holders of the Securities will be
limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Guarantee.
The
Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate 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 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)
Signature
Guarantee: (1)
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
Exhibit 10.5
FIXED/FLOATING
RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
THIS
SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT
INSURANCE CORPORATION.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY
ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM
THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A,
(D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER
THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES
ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL
NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED
TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE
INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Fixed/Floating
Rate Junior Subordinated Deferrable Interest Debenture
of
Washington
Trust Bancorp, Inc.
August 29,
2005
Washington
Trust Bancorp, Inc., a Rhode Island corporation (the “Company” which term
includes any successor Person under the Indenture hereinafter referred to),
for
value received promises to pay to Wilmington Trust Company, not in its
individual capacity but solely as Institutional Trustee for WT Capital
Trust I (the “Holder”) or registered assigns, the principal sum of eight
million two hundred forty-eight thousand dollars ($8,248,000.00) on
September 15, 2035, and to pay interest on said principal sum from
August 29, 2005, or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 15, June 15,
September 15 and December 15 of each year or if such day is not
a
Business Day, then the next succeeding Business Day (each such date, an
“Interest Payment Date”) (it being understood that interest accrues for any such
non-Business Day during the applicable Distribution Period, beginning on or
after September 15, 2010), commencing on the Interest Payment Date in
December 2005, at an annual rate equal to 5.965% beginning on (and including)
the date of original issuance and ending on (but excluding) the Interest Payment
Date in September 2010 and at an annual rate for each successive period
beginning on (and including) the Interest Payment Date in September 2010, and
each succeeding Interest Payment Date, and ending on (but excluding) the next
succeeding Interest Payment Date (each a “Distribution Period”), equal to
3-Month LIBOR, determined as described below, plus 1.45% (the “Coupon Rate”),
applied to the principal amount hereof, until the principal hereof is paid
or
duly provided for or made available for payment, and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest
(including Additional Interest) at the Interest Rate in effect for each
applicable period, compounded quarterly, from the dates such amounts are due
until they are paid or made available for payment. The amount of interest
payable (i) for any Distribution Period commencing on or after the date
of
original issuance but before the Interest Payment Date in September 2010
will be
computed on the basis of a 360-day year of twelve 30-day months, and
(ii) for the Distribution Period commencing on the Interest Payment
Date in
September 2010 and each succeeding Distribution Period will be computed on
the
basis of the actual number of days in the Distribution Period concerned divided
by 360. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on the regular record
date
for such interest installment, which shall be fifteen Business Days prior
to the
day on which the relevant Interest Payment Date occurs. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to
be payable to the Holder on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities)
is
registered at the close of business on a special record date.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following
order of priority: (i) the rate (expressed as a percentage per annum) for U.S.
dollar deposits having a three-month maturity that appears on Telerate Page
3750
as of 11:00 a.m. (London time) on the related Determination Date (“Telerate Page
3750” means the display designated as “Page 3750” on the Moneyline Telerate
Service or such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate cannot
be
identified on the related Determination Date, the Trustee will request the
principal London offices of four leading banks in the London interbank market
to
provide such banks’ offered quotations (expressed as percentages per annum) to
prime banks in the London interbank market for U.S. dollar deposits having
a
three-month maturity as of 11:00 a.m. (London time) on such Determination Date.
If at least two quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations; (iii) if fewer than two such quotations are
provided as requested in clause (ii) above, the Trustee will request four major
New York City banks to provide such banks’ offered quotations (expressed as
percentages per annum) to leading European banks for loans in U.S. dollars
as of
11:00 a.m. (London time) on such Determination Date. If at least two such
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; and (iv) if fewer than two such quotations are provided
as
requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR
determined with respect to the Distribution Period immediately preceding such
current Distribution Period. If the rate for U.S. dollar deposits having a
three-month maturity that initially appears on Telerate Page 3750 as of 11:00
a.m. (London time) on the related Determination Date is superseded on the
Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such
Determination Date, then the corrected rate as so substituted on the applicable
page will be the applicable 3-Month LIBOR for such Determination Date. As used
herein, “Determination Date” means the date that is two London Banking Days
(i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the commencement of the
relevant Distribution Period.
The
Interest Rate for any Distribution Period will at no time be higher than the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Debentures will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward)).
The
principal of and interest on this Debenture shall be payable at the office
or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts;
provided
,
however
,
that
payment of interest may be made by check mailed to the registered holder at
such
address as shall appear in the Debenture Register if a request for a wire
transfer by such holder has not been received by the Company or by wire transfer
to an account appropriately designated by the holder hereof. Notwithstanding
the
foregoing, so long as the holder of this Debenture is the Institutional Trustee,
the payment of the principal of and interest on this Debenture will be made
in
immediately available funds at such place and to such account as may be
designated by the Trustee.
So
long
as no Acceleration Event of Default has occurred and is continuing, the Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debentures by extending the
interest payment period on the Debentures at any time and from time to time
during the term of the Debentures, for up to 20 consecutive quarterly
periods (each such extended interest payment period, an “Extension Period”),
during which Extension Period no interest (including Additional Interest) shall
be due and payable (except any Additional Sums that may be due and payable).
No
Extension Period may end on a date other than an Interest Payment Date. During
an Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate equal to the
Interest Rate in effect for such Extension Period, compounded quarterly from
the
date such interest would have been payable were it not for the Extension Period,
to the extent permitted by law (such interest referred to herein as
“
Additional
Interest
”).
At
the end of any such Extension Period the Company shall pay all interest then
accrued and unpaid on the Debentures (together with Additional Interest
thereon);
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date;
provided
further
,
however
,
that
during any such Extension Period, the Company shall not and shall not permit
any
Affiliate to engage in any of the activities or transactions described on the
reverse side hereof and in the Indenture. Prior to the termination of any
Extension Period, the Company may further extend such period, provided that
such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend
beyond
the Maturity Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional Interest, the Company
may commence a new Extension Period, subject to the foregoing requirements.
No
interest or Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest. The Company must give the Trustee notice of its election
to
begin or extend an Extension Period by the close of business at least 15
Business Days prior to the Interest Payment Date with respect to which interest
on the Debentures would have been payable except for the election to begin
or
extend such Extension Period.
The
indebtedness evidenced by this Debenture is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his or her behalf to take
such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his
or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This
Debenture shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been signed by or on behalf of the
Trustee.
The
provisions of this Debenture are continued on the reverse side hereof and such
provisions shall for all purposes have the same effect as though fully set
forth
at this place.
IN
WITNESS WHEREOF,
the Company has duly executed this certificate.
WASHINGTON
TRUST BANCORP, INC.
By
/s/
John C. Warren
Name:
John C. Warren
Title:
Chairman and CEO
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Debentures referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY
,
as
Trustee
By:
/s//
Christopher Monigle
Authorized
Officer
This
Debenture is one of the fixed/floating rate junior subordinated deferrable
interest debentures of the Company, all issued or to be issued under and
pursuant to the Indenture dated as of August 29, 2005 (the “Indenture”),
duly executed and delivered between the Company and the Trustee, to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures. The Debentures are limited in
aggregate principal amount as specified in the Indenture.
Upon
the
occurrence and continuation of a Special Event prior to the Interest Payment
Date in September 2010, the Company shall have the right to redeem the
Debentures in whole, but not in part, at any Interest Payment Date, within
120
days following the occurrence of such Special Event, at the Special Redemption
Price.
In
addition, the Company shall have the right to redeem the Debentures, in whole
or
in part, but in all cases in a principal amount with integral multiples of
$1,000.00, on any Interest Payment Date on or after the Interest Payment Date
in
September 2010, at the Redemption Price.
Prior
to
10:00 a.m. New York City time on the Redemption Date or Special Redemption
Date,
as applicable, the Company will deposit with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the Redemption Date
or
the Special Redemption Date, as applicable, all the Debentures so called for
redemption at the appropriate Redemption Price or Special Redemption
Price.
If
all,
or less than all, the Debentures are to be redeemed, the Company will give
the
Trustee notice not less than 45 nor more than 60 days, respectively,
prior
to the Redemption Date or Special Redemption Date, as applicable, as to the
aggregate principal amount of Debentures to be redeemed and the Trustee shall
select, in such manner as in its sole discretion it shall deem appropriate
and
fair, the Debentures or portions thereof (in integral multiples of $1,000.00)
to
be redeemed.
Notwithstanding
the foregoing, any redemption of Debentures by the Company shall be subject
to
the receipt of any and all required regulatory approvals.
In
case
an Acceleration Event of Default shall have occurred and be continuing, upon
demand of the Trustee, the principal of all of the Debentures shall become
due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of not less than a majority in aggregate principal amount
of the Debentures at the time outstanding, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures;
provided
,
however
,
that no
such supplemental indenture shall without the consent of the holders of each
Debenture then outstanding and affected thereby (i) change the fixed
maturity of any Debenture, or reduce the principal amount thereof or any premium
thereon, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof or make the principal thereof
or any interest or premium thereon payable in any coin or currency other than
that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right of
repayment, if any, at the option of the holder, or (ii) reduce the
aforesaid percentage of Debentures the holders of which are required to consent
to any such supplemental indenture.
The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding on behalf
of the holders of all of the Debentures to waive (or modify any previously
granted waiver of) any past default or Event of Default, and its consequences,
except a default (a) in the payment of principal of, premium, if any,
or
interest on any of the Debentures, (b) in respect of covenants or
provisions hereof or of the Indenture which cannot be modified or amended
without the consent of the holder of each Debenture affected, or (c) in
respect of the covenants contained in Section 3.9 of the Indenture;
provided
,
however
,
that if
the Debentures are held by the Trust or a trustee of such trust, such waiver
or
modification to such waiver shall not be effective until the holders of a
majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver,
provided
,
further
,
that if
the consent of the holder of each outstanding Debenture is required, such waiver
shall not be effective until each holder of the Trust Securities of the Trust
shall have consented to such waiver. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of the Indenture and the
Company, the Trustee and the holders of the Debentures shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by the Indenture, said default or Event
of
Default shall for all purposes of the Debentures and the Indenture be deemed
to
have been cured and to be not continuing.
No
reference herein to the Indenture and no provision of this Debenture or of
the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest,
including Additional Interest, on this Debenture at the time and place and
at
the rate and in the money herein prescribed.
The
Company has agreed that if Debentures are initially issued to the Trust or
a
trustee of such Trust in connection with the issuance of Trust Securities by
the
Trust (regardless of whether Debentures continue to be held by such Trust)
and
(i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment of
any
obligations under the Capital Securities Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on the
Debentures by extending the interest payment period as provided herein and
such
Extension Period, or any extension thereof, shall be continuing, then the
Company shall not, and shall not allow any Affiliate of the Company to,
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or its Affiliates’ capital stock (other than payments of dividends
or distributions to the Company) or make any guarantee payments with respect
to
the foregoing or (y) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank
pari
passu
in all
respects with
or
junior
in interest to the Debentures (other than, with respect to clauses (x) and
(y)
above, (1) repurchases, redemptions or other acquisitions of shares
of
capital stock of the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, if any,
(2) as a result of any exchange or conversion of any class or series
of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or series
of the Company’s indebtedness for any class or series of the Company’s capital
stock, (3) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (4) any declaration
of
a dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (5) any dividend
in
the form of stock, warrants, options or other rights where the dividend stock
or
the stock issuable upon exercise of such warrants, options or other rights
is
the same stock as that on which the dividend is being paid or ranks
pari
passu
with or
junior to such stock and any cash payments in lieu of fractional shares issued
in connection therewith, or (6) payments under the Capital Securities
Guarantee).
The
Debentures are issuable only in registered, certificated form without coupons
and in minimum denominations of $100,000.00 and any multiple of $1,000.00 in
excess thereof. As provided in the Indenture and subject to the transfer
restrictions and limitations as may be contained herein and therein from time
to
time, this Debenture is transferable by the holder hereof on the Debenture
Register of the Company. Upon due presentment for registration of transfer
of
any Debenture at the Principal Office of the Trustee or at any office or agency
of the Company maintained for such purpose as provided in Section 3.2
of
the Indenture, the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and
make
available for delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. All Debentures presented for
registration of transfer or for exchange or payment shall (if so required by
the
Company or the Trustee or the Authenticating Agent) be duly endorsed by, or
be
accompanied by a written instrument or instruments of transfer in form
satisfactory to, the Company and the Trustee or the Authenticating Agent duly
executed by the holder or his attorney duly authorized in writing. No service
charge shall be made for any exchange or registration of transfer of Debentures,
but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, fee or other governmental charge that may be imposed in connection
therewith.
Prior
to
due presentment for registration of transfer of any Debenture, the Company,
the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and
any
Debenture registrar may deem the Person in whose name such Debenture shall
be
registered upon the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be overdue) for
the
purpose of receiving payment of or on account of the principal of, premium,
if
any, and interest on such Debenture and for all other purposes; and neither
the
Company nor the Trustee nor any Authenticating Agent nor any paying agent nor
any transfer agent nor any Debenture registrar shall be affected by any notice
to the contrary. All such payments so made to any holder for the time being
or
upon his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Debenture.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, officer or
director, as such, past, present or future, of the Company or of any successor
Person of the Company, either directly or through the Company or any successor
Person of the Company, whether by virtue of any constitution, statute or rule
of
law, or by the enforcement of any assessment or penalty or otherwise, it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of the
Indenture and the issue of the Debentures.
Capitalized
terms used and not defined in this Debenture shall have the meanings assigned
in
the Indenture dated as of the date of original issuance of this Debenture
between the Trustee and the Company.
THE
INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES THEREOF.
Exhibit 10.6
AMENDED
AND RESTATED DECLARATION OF TRUST
OF
WT
CAPITAL TRUST II
Dated
as
of August 29, 2005
TABLE
OF
CONTENTS
Page
|
ARTICLE
I
|
|
|
|
INTERPRETATION
AND DEFINITIONS
|
|
|
Section
1.1.
|
Definitions
|
|
|
ARTICLE
II
|
|
|
|
ORGANIZATION
|
|
|
|
Section
2.1.
|
Name
|
|
|
Section
2.2.
|
Office
|
|
|
Section
2.3.
|
Purpose
|
|
|
Section
2.4.
|
Authority
|
|
|
Section
2.5.
|
Title
to Property of the Trust
|
|
|
Section
2.6.
|
Powers
and Duties of the Trustees and the Administrators.
|
|
|
Section
2.7.
|
Prohibition
of Actions by the Trust and the Trustees.
|
|
|
Section
2.8.
|
Powers
and Duties of the Institutional Trustee.
|
|
|
Section
2.9.
|
Certain
Duties and Responsibilities of the Trustees and the
Administrators.
|
|
|
Section
2.10.
|
Certain
Rights of Institutional Trustee
|
|
|
Section
2.11.
|
Delaware
Trustee
|
|
|
Section
2.12.
|
Execution
of Documents
|
|
|
Section
2.13.
|
Not
Responsible for Recitals or Issuance of Securities
|
|
|
Section
2.14.
|
Duration
of Trust
|
|
|
Section
2.15.
|
Mergers
|
|
|
ARTICLE
III
|
|
|
|
SPONSOR
|
|
|
|
Section
3.1.
|
Sponsor’s
Purchase of Common Securities
|
|
|
Section
3.2.
|
Responsibilities
of the Sponsor
|
|
|
ARTICLE
IV
|
|
|
|
TRUSTEES
AND ADMINISTRATORS
|
|
|
Section
4.1.
|
Number
of Trustees
|
|
|
Section
4.2.
|
Delaware
Trustee
|
|
|
Section
4.3.
|
Institutional
Trustee; Eligibility.
|
|
|
Section
4.4.
|
Administrators
|
|
|
Section
4.5.
|
Appointment,
Removal and Resignation of the Trustees and the
Administrators.
|
|
|
Section
4.6.
|
Vacancies
Among Trustees
|
|
|
Section
4.7.
|
Effect
of Vacancies
|
|
|
Section
4.8.
|
Meetings
of the Trustees and the Administrators
|
|
|
Section
4.9.
|
Delegation
of Power
|
|
|
Section
4.10.
|
Merger,
Conversion, Consolidation or Succession to Business
|
|
|
ARTICLE
V
|
|
|
|
DISTRIBUTIONS
|
|
|
|
Section
5.1.
|
Distributions
|
|
|
ARTICLE
VI
|
|
|
|
ISSUANCE
OF SECURITIES
|
|
|
Section
6.1.
|
General
Provisions Regarding Securities.
|
|
|
Section
6.2.
|
Paying
Agent, Transfer Agent, Calculation Agent and Registrar.
|
|
|
Section
6.3.
|
Form
and Dating.
|
|
|
Section
6.4.
|
Book-Entry
Capital Securities.
|
|
|
Section
6.5.
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
|
Section
6.6.
|
Temporary
Certificates
|
|
|
Section
6.7.
|
Cancellation
|
|
|
Section
6.8.
|
Rights
of Holders; Waivers of Past Defaults.
|
|
|
ARTICLE
VII
|
|
|
|
DISSOLUTION
AND TERMINATION OF TRUST
|
|
|
Section
7.1.
|
Dissolution
and Termination of Trust
|
|
|
ARTICLE
VIII
|
|
|
|
TRANSFER
OF INTERESTS
|
|
|
Section
8.1.
|
General
|
|
|
Section
8.2.
|
Transfer
Procedures and Restrictions.
|
|
|
Section
8.3.
|
Deemed
Security Holders
|
|
|
Section
8.4.
|
Transfer
of Initial Securities
|
|
|
ARTICLE
IX
|
|
|
|
LIMITATION
OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
|
|
|
Section
9.1.
|
Liability
|
|
|
Section
9.2.
|
Exculpation
|
|
|
Section
9.3.
|
Fiduciary
Duty
|
|
|
Section
9.4.
|
Indemnification
|
|
|
Section
9.5.
|
Outside
Businesses
|
|
|
Section
9.6.
|
Compensation;
Fee
|
|
|
ARTICLE
X
|
|
|
|
ACCOUNTING
|
|
|
|
Section
10.1.
|
Fiscal
Year
|
|
|
Section
10.2.
|
Certain
Accounting Matters.
|
|
|
Section
10.3.
|
Banking
|
|
|
Section
10.4.
|
Withholding
|
|
|
ARTICLE
XI
|
|
|
|
AMENDMENTS
AND MEETINGS
|
|
|
Section
11.1.
|
Amendments
|
|
|
Section
11.2.
|
Meetings
of the Holders of the Securities; Action by Written
Consent.
|
|
|
ARTICLE
XII
|
|
|
|
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
|
|
|
Section
12.1.
|
Representations
and Warranties of Institutional Trustee
|
|
|
Section
12.2.
|
Representations
and Warranties of Delaware Trustee
|
|
|
ARTICLE
XIII
|
|
|
|
MISCELLANEOUS
|
|
|
|
Section
13.1.
|
Notices
|
|
|
Section
13.2.
|
Governing
Law
|
|
|
Section
13.3.
|
Submission
to Jurisdiction.
|
|
|
Section
13.4.
|
Intention
of the Parties
|
|
|
Section
13.5.
|
Headings
|
|
|
Section
13.6.
|
Successors
and Assigns
|
|
|
Section
13.7.
|
Partial
Enforceability
|
|
|
Section
13.8.
|
Counterparts
|
|
|
|
|
|
|
ANNEXES
AND
EXHIBITS
|
|
|
|
|
|
|
|
ANNEX I
|
Terms of Capital
Securities
and Common Securities
|
|
|
|
|
|
|
EXHIBIT A-1
|
Form of Capital
Security
Certificate
|
|
|
EXHIBIT A-2
|
Form of Common Security
Cerificate
|
|
|
EXHIBIT B
|
Form of Administrator's
Certificate of the Trust
|
|
|
EXHIBIT C
|
Form of Transferee
Certificate
to be Executed by Accredited
|
|
|
EXHIBIT D
|
Form of Transferor
Certificate
to be Executed for QIB's
|
|
|
EXHIBIT E
|
Form of Transferee
Certificate
to be Executed by Non-U.S. Persons
|
|
AMENDED
AND RESTATED DECLARATION OF TRUST
OF
WT
CAPITAL TRUST II
August
29, 2005
AMENDED
AND RESTATED DECLARATION OF TRUST (as amended or supplemented from time
to time
in accordance with the terms hereof, this “Declaration”), dated and effective as
of August 29, 2005, by the Trustees (as defined herein), the Administrators
(as
defined herein), the Sponsor (as defined herein) and the holders from time
to
time of undivided beneficial interests in the assets of the Trust (as defined
herein) to be issued pursuant to this Declaration.
WHEREAS,
certain of the Trustees and the Sponsor established WT Capital Trust II
(the
“Trust”), a statutory trust under the Statutory Trust Act (as defined herein),
pursuant to a Declaration of Trust, dated as of August 17, 2005 (the “Original
Declaration”), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on August 17, 2005, for the sole purpose of issuing
and
selling the Securities (as defined herein) representing undivided beneficial
interests in the assets of the Trust, investing the proceeds thereof in
the
Debentures (as defined herein) of the Debenture Issuer (as defined herein)
and
engaging in those activities necessary, advisable or incidental thereto;
WHEREAS,
as of the date hereof, no interests in the assets of the Trust have been
issued;
and
WHEREAS,
all of the Trustees, the Administrators and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
NOW,
THEREFORE, it being the intention of the parties hereto to continue the
Trust as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes the governing instrument of such statutory trust, and that
all
assets contributed to the Trust will be held in trust for the benefit of
the
holders, from time to time, of the Securities, subject to the provisions
of this
Declaration, and, in consideration of the mutual covenants contained herein
and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties, intending to be legally bound hereby, amend
and
restate in its entirety the Original Declaration and agree as
follows:
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
Section
1.1.
Definitions
.
Unless
the context otherwise requires:
(a)
capitalized
terms used in this Declaration but not defined in the preamble above or
elsewhere herein have the respective meanings assigned to them in this
Section
1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the
Indenture;
(b)
a
term
defined anywhere in this Declaration has the same meaning
throughout;
(c)
all
references to “the Declaration” or “this Declaration” are to this Declaration
and each Annex and Exhibit hereto, as modified, supplemented or amended
from
time to time;
(d)
all
references in this Declaration to Articles and Sections and Annexes and
Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e)
a
term
defined in the Trust Indenture Act (as defined herein) has the same meaning
when
used in this Declaration unless otherwise defined in this Declaration or
unless
the context otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
“Additional
Amounts” has the meaning set forth in Section 3.06 of the
Indenture.
“Administrative
Action” has the meaning set forth in paragraph 4(a) of Annex I.
“Administrators”
means each of John C. Warren, John F. Treanor and David V. Devault, solely
in
such Person’s capacity as Administrator of the Trust continued hereunder and not
in such Person’s individual capacity, or such Administrator’s successor in
interest in such capacity, or any successor appointed as herein
provided.
“Affiliate”
has the same meaning as given to that term in Rule 405 under the Securities
Act
or any successor rule thereunder.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Capital Security, the rules and procedures of the
Depositary for such Book-Entry Capital Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
“Authorized
Officer” of a Person means any Person that is authorized to bind such
Person.
“Bankruptcy
Event” means, with respect to any Person:
(a)
a
court
having jurisdiction in the premises enters a decree or order for relief
in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints
a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or for any substantial
part
of
its property, or orders the winding-up or liquidation of its affairs,
and such
decree, appointment or order remains unstayed and in effect for a period
of 90
consecutive days; or
(b)
such
Person commences a voluntary case under any applicable bankruptcy, insolvency
or
other similar law now or hereafter in effect, consents to the entry of
an order
for relief in an involuntary case under any such law, or consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of such Person
or of
any substantial part of its property, or makes any general assignment for
the
benefit of creditors, or fails generally to pay its debts as they become
due.
“Beneficial
Owner” means each Person who is the beneficial owner of Book-Entry Capital
Securities as reflected in the records of the Depositary or, if a Depositary
Participant is not the beneficial owner, then the beneficial owner as reflected
in the records of the applicable Depositary Participant.
“Book-Entry
Capital Security” means a Capital Security the ownership and transfers of which
shall be reflected and made, as applicable, through book entries by the
Depositary.
“Business
Day” means any day other than Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware, The City of New York or Providence,
Rhode
Island are permitted or required by law or executive order to
close.
“Calculation
Agent” has the meaning set forth in Section 1.01 of the Indenture.
“Capital
Securities” has the meaning set forth in Section 6.1(a).
“Capital
Security Certificate” means a definitive Certificate registered in the name of
the Holder representing a Capital Security substantially in the form of
Exhibit
A-1.
“Capital
Treatment Event” has the meaning set forth in paragraph 4(a) of
Annex I.
“Certificate”
means any certificate evidencing Securities.
“Certificate
of Trust” means the certificate of trust filed with the Secretary of State of
the State of Delaware with respect to the Trust, as amended and restated
from
time to time.
“Closing
Date” has the meaning set forth in the Placement Agreement.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time,
or any
successor legislation.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Securities” has the meaning set forth in Section 6.1(a).
“Common
Security Certificate” means a definitive Certificate registered in the name of
the Holder representing a Common Security substantially in the form of
Exhibit
A-2.
“Company
Indemnified Person” means (a) any Administrator, (b) any Affiliate of any
Administrator, (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrator or (d) any officer,
employee or agent of the Trust or its Affiliates.
“Corporate
Trust Office” means the office of the Institutional Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at all times shall be located within the United States and at the
time of
execution of this Declaration shall be
Rodney
Square North, 1100 North Market Street, Wilmington, DE 19890-0001, Attention:
Corporate Capital Markets
.
“Coupon
Rate” has the meaning set forth in paragraph 2(a) of Annex I.
“Covered
Person” means (a) any Administrator, officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the
Trust’s
Affiliates or (b) any Holder of Securities.
“Debenture
Issuer” means Washington Trust Bancorp, Inc., a bank holding company
incorporated in the State of Rhode Island, in its capacity as issuer of
the
Debentures under the Indenture, and any permitted successor under the
Indenture.
“Debenture
Trustee” means
Wilmington
Trust Company, a Delaware banking corporation
,
not in
its individual capacity but solely as trustee under the Indenture until
a
successor is appointed thereunder, and thereafter means such successor
trustee.
“Debentures”
means the Fixed/Floating Rate Junior Subordinated Debt Securities due 2035
to be
issued by the Debenture Issuer under the Indenture.
“Default”
means any event, act or condition that with notice or lapse of time, or
both,
would constitute an Event of Default.
“Deferred
Interest” means any interest on the Debentures that would have been overdue and
unpaid for more than one Distribution Payment Date but for the imposition
of an
Extension Period, and the interest that shall accrue (to the extent that
the
payment of such interest is legally enforceable) on such interest at the
Coupon
Rate applicable during such Extension Period, compounded quarterly from
the date
on which such Deferred Interest would otherwise have been due and payable
until
paid or made available for payment.
“Definitive
Capital Securities” means any Capital Securities in definitive form issued by
the Trust.
“Delaware
Trustee” has the meaning set forth in Section 4.2.
“Depositary”
means an organization registered as a clearing agency under the Exchange
Act
that is designated as Depositary by the Sponsor. DTC will be the initial
Depositary.
“Depositary
Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers
and pledges of securities deposited with or on behalf of the
Depositary.
“Direct
Action” has the meaning set forth in Section 2.8(e).
“Distribution”
means a distribution payable to Holders of Securities in accordance with
Section
5.1.
“Distribution
Payment Date” has the meaning set forth in paragraph 2(e) of Annex
I.
“Distribution
Period” has the meaning set forth in paragraph 2(a) of Annex I.
“DTC”
means The Depository Trust Company or any successor thereto.
“Event
of
Default” means the occurrence of an Indenture Event of Default.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time,
or
any successor legislation.
“Extension
Period” has the meaning set forth in paragraph 2(e) of Annex I.
“Federal
Reserve” has the meaning set forth in paragraph 3 of Annex I.
“Fiduciary
Indemnified Person” shall mean each of the Institutional Trustee (including in
its individual capacity), the Delaware Trustee (including in its individual
capacity), any Affiliate of the Institutional Trustee or the Delaware Trustee,
and any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Institutional Trustee
or
the Delaware Trustee.
“Fiscal
Year” has the meaning set forth in Section 10.1.
“Global
Capital Security” means a global Certificate evidencing ownership of Book-Entry
Capital Securities.
“Guarantee”
means the Guarantee Agreement, dated as of the Closing Date, of the Sponsor
(the
“Guarantor”) in respect of the Capital Securities.
“Holder”
means a Person in whose name a Certificate representing a Security is registered
on the Securities Register maintained by or on behalf of the Registrar,
such
Person being a beneficial owner within the meaning of the Statutory Trust
Act.
“Indemnified
Person” means a Company Indemnified Person or a Fiduciary Indemnified
Person.
“Indenture”
means the Indenture, dated as of the Closing Date, between the Debenture
Issuer
and the Debenture Trustee, and any indenture supplemental thereto pursuant
to
which the Debentures are to be issued.
“Indenture
Event of Default” means an “Event of Default” as defined in the
Indenture.
“Institutional
Trustee” means the Trustee meeting the eligibility requirements set forth in
Section 4.3.
“Investment
Company” means an investment company as defined in the Investment Company
Act.
“Investment
Company Act” means the Investment Company Act of 1940, as amended from time to
time, or any successor legislation.
“Investment
Company Event” has the meaning set forth in paragraph 4(a) of Annex
I.
“Legal
Action” has the meaning set forth in Section 2.8(e).
“LIBOR”
means the London Interbank Offered Rate for three-month U.S. Dollar deposits
in
Europe as determined by the Calculation Agent according to paragraph 2(b)
of
Annex I.
“LIBOR
Banking Day” has the meaning set forth in paragraph 2(b)(1) of
Annex I.
“LIBOR
Business Day” has the meaning set forth in paragraph 2(b)(1) of
Annex I.
“LIBOR
Determination Date” has the meaning set forth in paragraph 2(b)(1) of Annex
I.
“Liquidation”
has the meaning set forth in paragraph 3 of Annex I.
“Liquidation
Distribution” has the meaning set forth in paragraph 3 of Annex I.
“Majority
in liquidation amount of the Securities” means Holders of outstanding Securities
voting together as a single class or, as the context may require, Holders
of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50%
of the
aggregate liquidation amount (including the amount that would be paid upon
the
redemption, liquidation or otherwise on the date upon which the voting
percentages are determined, plus unpaid Distributions accrued thereon to
such
date) of all outstanding Securities of the relevant class.
“Maturity
Date” has the meaning set forth in paragraph 4(a) of Annex I.
“Maturity
Redemption Price” has the meaning set forth in paragraph 4(a) of Annex
I.
“Officers’
Certificate” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person or, in the case of a natural Person,
such
Person. Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall
include:
(a)
a
statement that each Authorized Officer or Person, as the case may be, signing
the Officers’ Certificate has read the covenant or condition and the definitions
relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by each Authorized Officer or Person, as the case may be, in rendering
the
Officers’ Certificate;
(c)
a
statement that each Authorized Officer or Person, as the case may be, has
made
such examination or investigation as, in his or her opinion, is necessary
to
enable such Authorized Officer or Person, as the case may be, to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of each Authorized Officer or Person,
as
the case may be, such condition or covenant has been complied with.
“Optional
Redemption Date” has the meaning set forth in paragraph 4(a) of Annex
I.
“Optional
Redemption Price” has the meaning set forth in paragraph 4(a) of Annex
I.
“Paying
Agent” has the meaning set forth in Section 6.2.
“Payment
Amount” has the meaning set forth in Section 5.1.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency
or
political subdivision thereof, or any other entity of whatever
nature.
“Placement
Agent” has the meaning given in the Placement Agreement.
“Placement
Agreement” means the Placement Agreement relating to the offer and sale of
Capital Securities.
“PORTAL”
has the meaning set forth in Section 2.6(a)(i).
“Property
Account” has the meaning set forth in Section 2.8(c).
“Pro
Rata” has the meaning set forth in paragraph 8 of Annex I.
“Purchaser”
has the meaning set forth in the Placement Agreement.
“QIB”
means a “qualified institutional buyer” as defined under Rule 144A.
“Quorum”
means a majority of the Administrators or, if there are only two Administrators,
both of them.
“Redemption/Distribution
Notice” has the meaning set forth in paragraph 4(e) of
Annex I.
“Reference
Banks” has the meaning set forth in paragraph 2(b)(2) of Annex I.
“Registrar”
has the meaning set forth in Section 6.2.
“Relevant
Trustee” has the meaning set forth in Section 4.5(a).
“Resale
Restriction Termination Date” means, with respect to any Capital Security, the
date which is the later of (i) two years (or such shorter period of time
as
permitted by Rule 144(k) under the Securities Act) after the later of (y)
the
date of original issuance of such Capital Security and (z) the last date
on
which the Trust or any Affiliate of the Trust was the Holder of such Capital
Security (or any predecessor thereto) and (ii) such later date, if any,
as may
be required by any subsequent change in applicable law.
“Responsible
Officer” means, with respect to the Institutional Trustee, any officer within
the Corporate Trust Office of the Institutional Trustee with direct
responsibility for the administration of this Declaration, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
other
officer of the Corporate Trust Office of the Institutional Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer’s
knowledge of and familiarity with the particular subject.
“Restricted
Securities Legend” has the meaning set forth in
Section 8.2(c).
“Rule
144A” means Rule 144A under the Securities Act.
“Rule
3a-5” means Rule 3a-5 under the Investment Company Act.
“Rule
3a-7” means Rule 3a-7 under the Investment Company Act.
“Securities”
means the Common Securities and the Capital Securities.
“Securities
Act” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
“Securities
Register” has the meaning set forth in Section 6.2(a).
“Special
Event” has the meaning set forth in paragraph 4(a) of Annex I.
“Special
Redemption Date” has the meaning set forth in paragraph 4(a) of
Annex I.
“Special
Redemption Price” has the meaning set forth in paragraph 4(a) of
Annex I.
“Sponsor”
means Washington Trust Bancorp, Inc., a bank holding company that is
incorporated in the State of Rhode Island, or any permitted successor of
the
Debenture Issuer under the Indenture, in its capacity as sponsor of the
Trust.
“Statutory
Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §
3801 et seq., as it may be amended from time to time, or any successor
legislation.
“Successor
Delaware Trustee” has the meaning set forth in Section 4.5(e).
“Successor
Entity” has the meaning set forth in Section 2.15(b).
“Successor
Institutional Trustee” has the meaning set forth in Section 4.5(b).
“Successor
Securities” has the meaning set forth in Section 2.15(b).
“Super
Majority” has the meaning set forth in paragraph 5(b) of Annex I.
“Tax
Event” has the meaning set forth in paragraph 4(a) of Annex I.
“Telerate
Page 3750” has the meaning set forth in paragraph 2(b)(1) of Annex
I.
“10%
in
liquidation amount of the Securities” means Holders of outstanding Securities
voting together as a single class or, as the context may require, Holders
of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of 10% or more
of the
aggregate liquidation amount (including the stated amount that would be
paid
upon the redemption, liquidation or otherwise on the date upon which the
voting
percentages are determined, plus unpaid Distributions accrued thereon to
such
date) of all outstanding Securities of the relevant class.
“Transfer
Agent” has the meaning set forth in Section 6.2.
“Treasury
Regulations” means the income tax regulations, including temporary and proposed
regulations, promulgated under the Code by the United States Treasury,
as such
regulations may be amended from time to time (including corresponding provisions
of succeeding regulations).
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended from
time-to-time, or any successor legislation.
“Trust
Property” means (a) the Debentures, (b) any cash on deposit in, or owing to, the
Property 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 Institutional Trustee pursuant to the trusts of this
Declaration.
“Trustee”
or “Trustees” means each Person who has signed this Declaration as a trustee, so
long as such Person shall continue in office in accordance with the terms
hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof,
and
references herein to a Trustee or the Trustees shall refer to such Person
or
Persons solely in their capacity as trustees hereunder.
“U.S.
Person” means a United States Person as defined in Section 7701(a)(30) of the
Code.
ARTICLE
II
ORGANIZATION
Section
2.1.
Name
.
The
Trust is named “WT Capital Trust II,” as such name may be modified from time to
time by the Administrators following written notice to the Institutional
Trustee
and the Holders of the Securities. The Trust’s activities may be conducted under
the name of the Trust or any other name deemed advisable by the
Administrators.
Section
2.2.
Office
.
The
address of the principal office of the Trust, which shall be in a state
of the
United States or the District of Columbia, is 23 Broad Street, Westerly,
Rhode
Island 02891. On ten Business Days’ written notice to the Institutional Trustee
and the Holders of the Securities, the Administrators may designate another
principal office, which shall be in a state of the United States or the
District
of Columbia.
Section
2.3.
Purpose
.
The
exclusive purposes and functions of the Trust are (a) to issue and sell
the
Securities representing undivided beneficial interests in the assets of
the
Trust, (b) to invest the gross proceeds from such sale in the Debentures
and (c)
except as otherwise limited herein, to engage in only those other activities
deemed necessary, advisable or incidental thereto by the Institutional
Trustee,
including, without limitation, those activities specified in this Declaration.
The Trust shall not borrow money, issue debt or reinvest proceeds derived
from
investments, pledge any of its assets, or otherwise undertake (or permit
to be
undertaken) any activity that would cause the Trust not to be classified
for
United States federal income tax purposes as a grantor trust.
Section
2.4.
Authority
.
Except
as specifically provided in this Declaration, the Institutional Trustee
shall
have exclusive and complete authority to carry out the purposes of the
Trust. An
action taken by a Trustee on behalf of the Trust and in accordance with
such
Trustee’s powers shall constitute the act of and serve to bind the Trust. In
dealing with the Trustees acting on behalf of the Trust, no Person shall
be
required to inquire into the authority of the Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the
power
and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein
with
respect to accomplishing the purposes of the Trust and are not intended
to be
trustees or fiduciaries with respect to the Trust
or
the
Holders. The Institutional Trustee shall have the right, but shall not
be
obligated except as provided in Section 2.6, to perform those duties
assigned to
the Administrators.
Section
2.5.
Title
to Property of the Trust
.
Except
as provided in Section 2.6(g) and Section 2.8 with respect to the Debentures
and
the Property Account or as otherwise provided in this Declaration, legal
title
to all assets of the Trust shall be vested in the Trust. The Holders shall
not
have legal title to any part of the assets of the Trust, but shall have
an
undivided beneficial interest in the assets of the Trust.
Section
2.6.
Powers
and Duties of the Trustees and the Administrators
.
(a)
The
Trustees and the Administrators shall conduct the affairs of the Trust
in
accordance with the terms of this Declaration. Subject to the limitations
set
forth in paragraph (b) of this Section, and in accordance with the
following provisions (i) and (ii), the Administrators and, at the direction
of
the Administrators, the Trustees, shall have the authority to enter into
all
transactions and agreements determined by the Administrators to be appropriate
in exercising the authority, express or implied, otherwise granted to the
Trustees or the Administrators, as the case may be, under this Declaration,
and
to perform all acts in furtherance thereof, including without limitation,
the
following:
(i)
Each
Administrator shall have the power, duty and authority, and is hereby
authorized, to act on behalf of the Trust with respect to the following
matters:
(A)
the
issuance and sale of the Securities;
(B)
to
cause
the Trust to enter into, and to execute, deliver and perform on behalf
of the
Trust, such agreements as may be necessary or desirable in connection with
the
purposes and function of the Trust, including agreements with the Paying
Agent,
a subscription agreement for Debentures between the Trust and the Sponsor,
a
subscription agreement for Capital Securities between the Trust and the
purchaser of the Capital Securities and a subscription agreement for Common
Securities between the Trust and the Sponsor;
(C)
ensuring
compliance with the Securities Act and applicable securities or blue sky
laws of
states and other jurisdictions;
(D)
if
and at
such time determined solely by the Sponsor at the request of the Holders,
assisting in the designation of the Capital Securities for trading in the
Private Offering, Resales and Trading through the Automatic Linkages (“PORTAL”)
system if available;
(E)
the
sending of notices (other than notices of default) and other information
regarding the Securities and the Debentures to the Holders in accordance
with
this Declaration, including notice of any notice received from the Debenture
Issuer of its election to defer payments
of
interest on the Debentures by extending the interest payment period under
the
Indenture;
(F)
the
appointment of a Paying Agent, Transfer Agent and Registrar in accordance
with
this Declaration;
(G)
execution
and delivery of the Securities in accordance with this Declaration;
(H)
execution
and delivery of closing certificates pursuant to the Placement Agreement
and the
application for a taxpayer identification number;
(I)
unless
otherwise determined by the Holders of a Majority in liquidation amount
of the
Securities or as otherwise required by the Statutory Trust Act, to execute
on
behalf of the Trust (either acting alone or together with any or all of
the
Administrators) any documents that the Administrators have the power to
execute
pursuant to this Declaration;
(J)
the
taking of any action as the Sponsor or an Administrator may from time to
time
determine is necessary, advisable or incidental to the foregoing to give
effect
to the terms of this Declaration for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder);
(K)
to
establish a record date with respect to all actions to be taken hereunder
that
require a record date be established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders
of
Capital Securities and Holders of Common Securities as to such actions
and
applicable record dates;
(L)
to
duly
prepare and file on behalf of the Trust all applicable tax returns and
tax
information reports that are required to be filed with respect to the
Trust;
(M)
to
negotiate the terms of, and the execution and delivery of, the Placement
Agreement and any other related agreements providing for the sale of the
Capital
Securities or the resale thereof by the Purchaser;
(N)
to
employ
or otherwise engage employees, agents (who may be designated as officers
with
titles), managers, contractors, advisors, attorneys and consultants and
pay
reasonable compensation for such services;
(O)
to
incur
expenses that are necessary, advisable or incidental to carry out any of
the
purposes of the Trust;
(P)
to
give
the certificate, substantially in the form of Exhibit B attached hereto,
required by § 314(a)(4) of the Trust Indenture Act to the Institutional Trustee,
which certificate may be executed by an Administrator; and
(Q)
to
take
all action that may be necessary or appropriate for the preservation and
the
continuation of the Trust’s valid existence, rights, franchises and privileges
as a statutory trust under the laws of each jurisdiction (other than the
State
of Delaware) in which such existence is necessary to protect the limited
liability of the Holders of the Capital Securities or to enable the Trust
to
effect the purposes for which the Trust was created.
(ii)
As
among
the Trustees and the Administrators, the Institutional Trustee shall have
the
power, duty and authority, and is hereby authorized, to act on behalf of
the
Trust with respect to the following matters:
(A)
the
establishment of the Property Account;
(B)
the
receipt of the Debentures;
(C)
the
collection of interest, principal and any other payments made in respect
of the
Debentures in the Property Account;
(D)
the
distribution through the Paying Agent of amounts owed to the Holders in
respect
of the 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 Securities
and
the Debentures to the Holders in accordance with this Declaration;
(G)
the
distribution of the Trust Property in accordance with the terms of this
Declaration;
(H)
to
the
extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(I)
after
any
Event of Default (of which the Institutional Trustee has knowledge (as
provided
in Section 2.10(m) hereof)) (
provided
,
that
such Event of Default is not by or with respect to the Institutional Trustee),
the taking of any action that the Institutional Trustee may from time to
time
determine is necessary, advisable or incidental for the foregoing to give
effect
to the terms of this Declaration 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);
(J)
to
take
all action that may be necessary or appropriate for the preservation and
the
continuation of the Trust’s valid existence, rights, franchises and privileges
as a statutory trust under the laws of the State of Delaware to protect
the
limited liability of the Holders of the Capital Securities or to enable
the
Trust to effect the purposes for which the Trust was created; and
(K)
to
undertake any actions set forth in § 317(a) of the Trust Indenture
Act.
(iii)
The
Institutional Trustee shall have the power and authority, and is hereby
authorized, to act on behalf of the Trust with respect to any of the duties,
liabilities, powers or the authority of the Administrators set forth in
Section
2.6(a)(i)(E) and (F) herein but shall not have a duty to do any such act
unless
specifically requested to do so in writing by the Sponsor, and shall then
be
fully protected in acting pursuant to such written request; and in the
event of
a conflict between the action of the Administrators and the action of the
Institutional Trustee, the action of the Institutional Trustee shall
prevail.
(b)
So
long
as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may
cause the
Trust to (i) acquire any investments or engage in any activities
not
authorized by this Declaration, (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 cause (or in the case of the Institutional
Trustee, to the actual knowledge of a Responsible Officer would cause)
the Trust
to fail or cease to qualify as a grantor trust for United States federal
income
tax purposes, (iv) incur any indebtedness for borrowed money or
issue any
other debt or (v) take or consent to any action that would result
in the
placement of a lien on any of the Trust Property. The Institutional Trustee
shall, at the sole cost and expense of the Trust subject to reimbursement
under
Section 9.6(a), defend all claims and demands of all Persons at any time
claiming any lien on any of the Trust Property adverse to the interest
of the
Trust or the Holders in their capacity as Holders.
(c)
In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect
to, or
effect on behalf of the Trust, the following (and any actions taken by
the
Sponsor in furtherance of the following prior to the date of this Declaration
are hereby ratified and confirmed in all respects):
(i)
the
taking of any action necessary to obtain an exemption from the Securities
Act;
(ii)
the
determination of the jurisdictions 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 which must be
taken
by or on behalf of the Trust, and the advisement of and direction to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the
Trust
or on behalf of the Trust, as the Sponsor deems necessary or advisable
in order
to comply with the applicable laws of any such jurisdictions in connection
with
the sale of the Capital Securities; and
(iii)
the
taking of any other actions necessary or desirable to carry out any of
the
foregoing activities.
(d)
Notwithstanding
anything herein to the contrary, the Administrators, the Institutional
Trustee
and the Holders of a Majority in liquidation amount of the Common Securities
are
authorized and directed to conduct the affairs of the Trust and to operate
the
Trust so that (i) the Trust will not be deemed to be an Investment
Company
required to be registered under the Investment Company Act (in the case
of the
Institutional Trustee, to the actual knowledge of a Responsible Officer),
and
(ii) the Trust will not fail to be classified as a grantor trust
for United
States federal income tax purposes (in the case of the Institutional Trustee,
to
the actual knowledge of a Responsible Officer) and (iii) the Trust
will not
take any action inconsistent with the treatment of the Debentures as
indebtedness of the Debenture Issuer for United States federal income tax
purposes (in the case of the Institutional Trustee, to the actual knowledge
of a
Responsible Officer). In this connection, the Institutional Trustee, the
Administrators and the Holders of a Majority in liquidation amount of the
Common
Securities are authorized to take any action, not inconsistent with applicable
laws or this Declaration, as amended from time to time, that each of the
Institutional Trustee, the Administrators and such Holders determine in
their
discretion to be necessary or desirable for such purposes, even if such
action
adversely affects the interests of the Holders of the Capital
Securities.
(e)
All
expenses incurred by the Administrators or the Trustees pursuant to this
Section
2.6 shall be reimbursed by the Sponsor, and the Trustees shall have no
obligations with respect to such expenses.
(f)
The
assets of the Trust shall consist of the Trust Property.
(g)
Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by
the
Institutional Trustee for the benefit of the Trust in accordance with this
Declaration.
(h)
If
the
Institutional Trustee or any Holder has instituted any proceeding to enforce
any
right or remedy under this Declaration and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the
Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively
to
their former positions hereunder, and thereafter all rights and remedies
of the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section
2.7.
Prohibition
of Actions by the Trust and the Trustees
.
The
Trust
shall not, and the Institutional Trustee and the Administrators shall not,
and
the Administrators shall cause the Trust not to, engage in any activity
other
than as required or authorized by this Declaration. In particular, the
Trust
shall not, and the Institutional Trustee and the Administrators shall not
cause
the Trust to:
(a)
invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the
terms
of this Declaration and of the Securities;
(b)
acquire
any assets other than as expressly provided herein;
(c)
possess
Trust Property for other than a Trust purpose;
(d)
make
any
loans or incur any indebtedness other than loans represented by the
Debentures;
(e)
possess
any power or otherwise act in such a way as to vary the Trust Property
or the
terms of the Securities;
(f)
issue
any
securities or other evidences of beneficial ownership of, or beneficial
interest
in, the Trust other than the Securities; or
(g)
other
than as provided in this Declaration (including Annex I), (i) direct the
time,
method and place of exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (ii) waive any past default that
is
waivable under the Indenture, (iii) exercise any right to rescind or annul
any
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 unless the Trust
shall
have received a written opinion of counsel experienced in such matters
to the
effect that such amendment, modification or termination will not cause
the Trust
to cease to be classified as a grantor trust for United States federal
income
tax purposes.
Section
2.8.
Powers
and Duties of the Institutional Trustee
.
(a)
The
legal
title to the Debentures shall be owned by and held of record in the name
of the
Institutional Trustee in trust for the benefit of the Trust. The right,
title
and interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 4.5. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to
the
Debentures have been executed and delivered.
(b)
The
Institutional Trustee shall not transfer its right, title and interest
in the
Debentures to the Administrators or to the Delaware Trustee.
(c)
The
Institutional Trustee shall:
(i)
establish
and maintain a segregated non-interest bearing trust account (the “Property
Account”) in the United States (as defined in Treasury Regulations §
301.7701-7), in the name of and under the exclusive control of the Institutional
Trustee, and maintained in the Institutional Trustee’s trust department, on
behalf of the Holders of the Securities and, upon the receipt of payments
of
funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Property Account and make payments to the Holders
of
the Capital Securities and Holders of the Common Securities from the Property
Account in accordance with Section 5.1. Funds in the Property Account shall
be
held uninvested until disbursed in accordance with this
Declaration;
(ii)
engage
in
such ministerial activities as shall be necessary or appropriate to effect
the
redemption of the Capital Securities and the Common Securities to the extent
the
Debentures are redeemed or mature; and
(iii)
upon
written notice of distribution issued by the Administrators in accordance
with
the terms of the Securities, engage in such ministerial activities as shall
be
necessary or appropriate to effect the distribution of the Debentures to
Holders
of Securities upon the occurrence of the circumstances specified therefor
under
the terms of the Securities.
(d)
The
Institutional Trustee shall take all actions and perform such duties as
may be
specifically required of the Institutional Trustee pursuant to the terms
of the
Securities.
(e)
The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands
of
or against, the Trust (a “Legal Action”) which arise out of or in connection
with an Event of Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee’s duties and
obligations under this Declaration or the Trust Indenture Act;
provided
,
however
,
that if
an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or
premium,
if any, on or principal of the Debentures on the date such interest, premium,
if
any, or principal is otherwise payable (or in the case of redemption, on
the
date of redemption), then a Holder of the Capital Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest that is so payable on the
Debentures having a principal amount equal to the aggregate liquidation
amount
of the Capital Securities of such Holder (a “Direct Action”) on or after the
respective due date specified in the Debentures. In connection with such
Direct
Action, the rights of the Holders of the Common Securities will be subrogated
to
the rights of such Holder of the Capital Securities to the extent of any
payment
made by the Debenture Issuer to such Holder of the Capital Securities in
such
Direct Action;
provided
,
however
,
that a
Holder of the Common Securities may exercise such right of subrogation
only if
no Event of Default with respect to the Capital Securities has occurred
and is
continuing.
(f)
The
Institutional Trustee shall continue to serve as a Trustee until
either:
(i)
the
Trust
has been completely liquidated and the proceeds of the liquidation distributed
to the Holders of the Securities pursuant to the terms of the Securities
and
this Declaration (including Annex I); or
(ii)
a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.5.
(g)
The
Institutional Trustee shall have the legal power to exercise all of the
rights,
powers and privileges of a holder of the Debentures under the Indenture
and, if
an Event of Default occurs and is continuing, the Institutional Trustee
may, for
the benefit of Holders of the Securities, enforce its rights as holder
of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
(h)
The
Institutional Trustee must exercise the powers set forth in this Section
2.8 in
a manner that is consistent with the purposes and functions of the Trust
set out
in Section 2.3, and the Institutional Trustee shall not take any action
that is
inconsistent with the purposes and functions of the Trust set out in Section
2.3.
Section
2.9.
Certain
Duties and Responsibilities of the Trustees and the
Administrators
.
(a)
The
Institutional Trustee, before the occurrence of any Event of Default (of
which
the Institutional Trustee has knowledge (as provided in Section 2.10(m)
hereof))
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
Declaration and no implied covenants shall be read into this Declaration
against
the Institutional Trustee. In case an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)),
has occurred (that has not been cured or waived pursuant to Section 6.7),
the
Institutional Trustee shall exercise such of the rights and powers vested
in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of his or her own affairs.
(b)
The
duties and responsibilities of the Trustees and the Administrators shall
be as
provided by this Declaration and, in the case of the Institutional Trustee,
by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this
Declaration shall require any Trustee or Administrator to expend or risk
its own
funds or otherwise incur any financial liability in the performance of
any of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity satisfactory to it against such risk or liability is
not
reasonably assured to it. Whether or not therein expressly so provided,
every
provision of this Declaration relating to the conduct or affecting the
liability
of or affording protection to the Trustees or the Administrators shall
be
subject to the provisions of this Article. Nothing in this Declaration
shall be
construed to release a Trustee from liability for its own negligent action,
its
own negligent failure to act, or its own willful misconduct or bad faith.
Nothing in this Declaration shall be construed to release an Administrator
from
liability for its own gross negligent action, its own gross negligent failure
to
act, or its own willful misconduct or bad faith. To the extent that, at
law or
in equity, a Trustee or an Administrator has duties and liabilities relating
to
the Trust or to the
Holders,
such Trustee or Administrator shall not be liable to the Trust or to
any Holder
for such Trustee’s or Administrator’s good faith reliance on the provisions of
this Declaration. The provisions of this Declaration, to the extent that
they
restrict the duties and liabilities of the Administrators or the Trustees
otherwise existing at law or in equity, are agreed by the Sponsor and
the
Holders to replace such other duties and liabilities of the Administrators
or
the Trustees.
(c)
All
payments made by the Institutional Trustee or a Paying Agent in respect
of the
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 Institutional Trustee or
a Paying
Agent to make payments in accordance with the terms hereof. Each Holder,
by its
acceptance of a 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 Trustees and the
Administrators are not personally liable to it for any amount distributable
in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly
set
forth elsewhere in this Declaration or, in the case of the Institutional
Trustee, in the Trust Indenture Act.
(d)
No
provision of this Declaration shall be construed to relieve the Institutional
Trustee from liability for its own negligent action, its own negligent
failure
to act, or its own willful misconduct or bad faith with respect to matters
that
are within the authority of the Institutional Trustee under this Declaration,
except that:
(i)
the
Institutional Trustee shall not be liable for any error or judgment made
in good
faith by an Authorized Officer of the Institutional Trustee, unless it
shall be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(ii)
the
Institutional 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 a Majority in liquidation amount of the Capital Securities or
the
Common Securities, as applicable, relating to the time, method and place
of
conducting any proceeding for any remedy available to the Institutional
Trustee,
or exercising any trust or power conferred upon the Institutional Trustee
under
this Declaration;
(iii)
the
Institutional Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Property Account shall
be to
deal with such property in a similar manner as the Institutional Trustee
deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(iv)
the
Institutional Trustee shall not be liable for any interest on any money
received
by it except as it may otherwise agree in writing with the Sponsor; and
money
held by the Institutional Trustee need not be segregated from other funds
held
by it except in relation to the Property Account maintained by the
Institutional
Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
required by law; and
(v)
the
Institutional Trustee shall not be responsible for monitoring the compliance
by
the Administrators or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default
or
misconduct of the Administrators or the Sponsor.
Section
2.10.
Certain
Rights of Institutional Trustee
.
Subject
to the provisions of Section 2.9:
(a)
the
Institutional Trustee may conclusively rely and shall fully be protected
in
acting or refraining from acting in good faith upon any resolution, written
opinion of counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction, 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, sent
or
presented by the proper party or parties;
(b)
if
(i) in performing its duties under this Declaration, the Institutional
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any
other
provisions contained herein, or (iii) the Institutional Trustee
is unsure
of the application of any provision of this Declaration, then, except as
to any
matter as to which the Holders of Capital Securities are entitled to vote
under
the terms of this Declaration, the Institutional Trustee may deliver a
notice to
the Sponsor requesting the Sponsor’s opinion as to the course of action to be
taken and the Institutional Trustee shall take such action, or refrain
from
taking such action, as the Institutional Trustee in its sole discretion
shall
deem advisable and in the best interests of the Holders, in which event
the
Institutional Trustee shall have no liability except for its own negligence,
willful misconduct or bad faith;
(c)
any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers’
Certificate;
(d)
whenever
in the administration of this Declaration, the Institutional Trustee shall
deem
it desirable that a matter be proved or established before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad
faith on its part, request and conclusively rely upon an Officers’ Certificate
which, upon receipt of such request, shall be promptly delivered by the
Sponsor
or the Administrators;
(e)
the
Institutional 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 reregistration thereof;
(f)
the
Institutional Trustee may consult with counsel of its selection (which
counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice
of such
counsel
shall
be
full and complete authorization and protection in respect of any action
taken,
suffered or omitted by it hereunder in good faith and in reliance thereon
and in
accordance with such advice; the Institutional Trustee shall have the
right at
any time to seek instructions concerning the administration of this Declaration
from any court of competent jurisdiction;
(g)
the
Institutional Trustee shall be under no obligation to exercise any of the
rights
or powers vested in it by this Declaration at the request or direction
of any of
the Holders pursuant to this Declaration, unless such Holders shall have
offered
to the Institutional Trustee security or indemnity reasonably satisfactory
to it
against the costs, expenses and liabilities which might be incurred by
it in
compliance with such request or direction;
provided
,
that
nothing contained in this Section 2.10(g) shall be taken to relieve
the
Institutional Trustee, upon the occurrence of an Event of Default (of which
the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
that has not been cured or waived, of its obligation to exercise the rights
and
powers vested in it by this Declaration;
(h)
the
Institutional 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 Institutional
Trustee may make such further inquiry or investigation into such facts
or
matters as it may see fit;
(i)
the
Institutional 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 and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any
such
agent or attorney appointed with due care by it hereunder;
(j)
whenever
in the administration of this Declaration the Institutional Trustee shall
deem
it desirable to receive instructions with respect to enforcing any remedy
or
right or taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders of the Common Securities
and
the Capital Securities, which instructions may be given only by the Holders
of
the same proportion in liquidation amount of the Common Securities and
the
Capital Securities as would be entitled to direct the Institutional Trustee
under the terms of the Common Securities and the Capital Securities in
respect
of such remedy, right or action, (ii) may refrain from enforcing such remedy
or
right or taking such other action until such instructions are received,
and
(iii) shall be fully protected in acting in accordance with such
instructions;
(k)
except
as
otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary
under
the provisions of this Declaration;
(l)
when
the
Institutional Trustee incurs expenses or renders services in connection
with a
Bankruptcy Event, such expenses (including the fees and expenses of its
counsel)
and the compensation for such services are intended to constitute expenses
of
administration under any bankruptcy law or law relating to creditors rights
generally;
(m)
the
Institutional Trustee shall not be charged with knowledge of an Event of
Default
unless a Responsible Officer of the Institutional Trustee has actual knowledge
of such event or the Institutional Trustee receives written notice of such
event
from any Holder, except that the Institutional Trustee shall be deemed
to have
knowledge of any Event of Default pursuant to Sections 5.01(a), 5.01(b)
or
5.01(c) of the Indenture (other than an Event of Default resulting from
the
default in the payment of Additional Amounts if the Institutional Trustee
does
not have actual knowledge or written notice that such payment is due and
payable);
(n)
any
action taken by the Institutional Trustee or its agents hereunder shall
bind the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform
any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any
of the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee’s or its agent’s taking such action;
and
(o)
no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any
right,
power, duty or obligation conferred or imposed on it, in any jurisdiction
in
which it shall be illegal, or in which the Institutional Trustee shall
be
unqualified or incompetent in accordance with applicable law, to perform
any
such act or acts, or to exercise any such right, power, duty or obligation,
and
no permissive power or authority available to the Institutional Trustee
shall be
construed to be a duty.
Section
2.11.
Delaware
Trustee
.
Notwithstanding any other provision of this Declaration other than Section
4.2,
the Delaware Trustee shall not be entitled to exercise any powers, and
the
Delaware Trustee shall not have any of the duties and responsibilities
of any of
the Trustees or the Administrators specified in this Declaration (except
as may
be required under the Statutory Trust Act). Except as set forth in Section
4.2,
the Delaware Trustee shall be a Trustee for the sole and limited purpose
of
fulfilling the requirements of § 3807 of the Statutory Trust Act.
Section
2.12.
Execution
of Documents
.
Unless
otherwise determined in writing by the Institutional Trustee, and except
as
otherwise required by the Statutory Trust Act, the Institutional Trustee,
or any
one or more of the Administrators, as the case may be, is authorized to
execute
and deliver on behalf of the Trust any documents, agreements, instruments
or
certificates that the Trustees or the Administrators, as the case may be,
have
the power and authority to execute pursuant to Section 2.6.
Section
2.13.
Not
Responsible for Recitals or Issuance of Securities
.
The
recitals contained in this Declaration and the Securities shall be taken
as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for
their correctness. The Trustees make no representations as to the value
or
condition of the Trust Property or any part thereof. The Trustees make
no
representations as to the validity or sufficiency of this Declaration,
the
Debentures or the Securities.
Section
2.14.
Duration
of Trust
.
The
Trust, unless dissolved pursuant to the provisions of Article VII hereof,
shall
have existence for five (5) years after the Maturity Date.
Section
2.15.
Mergers
.
a)
The
Trust may not consolidate, amalgamate, merge with or into, or be replaced
by, or
convey, transfer or lease its properties and assets substantially as an
entirety
to any corporation or other Person, except as described in this Section
2.15 and
except with respect to the distribution of Debentures to Holders of Securities
pursuant to Section 7.1(a)(iv) of this Declaration or Section 4 of Annex
I.
(b)
The
Trust
may, with the consent of the Administrators (which consent will not be
unreasonably withheld) and without the consent of the Institutional Trustee,
the
Delaware Trustee or the Holders of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer
or lease
its properties and assets as an entirety or substantially as an entirety
to a
trust organized as such under the laws of any state;
provided
,
that:
(i)
if
the
Trust is not the survivor, such successor entity (the “Successor Entity”)
either:
(A)
expressly
assumes all of the obligations of the Trust under the Securities;
or
(B)
substitutes
for the Securities other securities having substantially the same terms
as the
Securities (the “Successor Securities”) so that the Successor Securities rank
the same as the Securities rank with respect to Distributions and payments
upon
Liquidation, redemption and otherwise;
(ii)
the
Sponsor expressly appoints, as the holder of the Debentures, a trustee
of the
Successor Entity that possesses the same powers and duties as the Institutional
Trustee;
(iii)
the
Capital Securities or any Successor Securities are listed or quoted, or
any
Successor Securities will be listed or quoted upon notification of issuance,
on
any national securities exchange or with another organization on which
the
Capital Securities are then listed or quoted, if any;
(iv)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease
does not cause the rating on the Capital Securities or any Successor Securities
to be downgraded or withdrawn by any nationally recognized statistical
rating
organization, if the Capital Securities are then rated;
(v)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease
does not adversely affect the rights, preferences and privileges of the
Holders
of the Securities or any Successor Securities in any material respect (other
than with respect to any dilution of such Holders’ interests in the Successor
Entity);
(vi)
such
Successor Entity, if any, has a purpose substantially identical to that
of the
Trust;
(vii)
prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Trust has received a written opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease
does not adversely affect the rights, preferences and privileges of the
Holders
of the Securities or any Successor Securities in any material respect (other
than with respect to any dilution of such Holders’ interests in the Successor
Entity);
(B)
following
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, neither the Trust nor the Successor Entity will be required to register
as an Investment Company under the Investment Company Act; and
(C)
following
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Trust or the Successor Entity will continue to be classified
as a
grantor trust for United States federal income tax purposes;
(viii)
the
Sponsor guarantees the obligations of the Successor Entity under the Successor
Securities to the same extent provided by the Indenture, the Guarantee,
the
Debentures and this Declaration; and
(ix)
prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Institutional Trustee shall have received an Officers’ Certificate of
the Administrators and an opinion of counsel, each to the effect that all
conditions precedent of this paragraph (b) to such transaction have
been
satisfied.
(c)
Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders
of 100%
in liquidation amount of the Securities, consolidate, amalgamate, merge
with or
into, or be replaced by, or convey, transfer or lease its properties and
assets
as an entirety or substantially as an entirety to, any other Person or
permit
any other Person to consolidate, amalgamate, merge with or into, or replace
it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or Successor Entity to be classified as
other
than a grantor trust for United States federal income tax purposes.
ARTICLE
III
SPONSOR
Section
3.1.
Sponsor’s
Purchase of Common Securities
.
On the
Closing Date, the Sponsor will purchase all of the Common Securities issued
by
the Trust, in an amount at least equal to 3% of the capital of the Trust,
at the
same time as the Capital Securities are sold.
Section
3.2.
Responsibilities
of the Sponsor
.
In
connection with the issue and sale of the Capital Securities, the Sponsor
shall
have the exclusive right and responsibility and sole decision to engage
in, or
direct the Administrators to engage in, the following activities:
(a)
to
determine the jurisdictions in which to take appropriate action to qualify
or
register for sale all or part of the Capital Securities and to do any and
all
such acts, other than actions which must be taken by the Trust, and advise
the
Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary,
advisable or incidental thereto in order to comply with the applicable
laws of
any such jurisdictions;
(b)
to
prepare for filing and request the Administrators to cause the filing by
the
Trust, as may be appropriate, of an application to the PORTAL system, for
listing or quotation upon notice of issuance of any Capital Securities,
as
requested by the Holders of not less than a Majority in liquidation amount
of
the Capital Securities; and
(c)
to
negotiate the terms of and/or execute and deliver on behalf of the Trust,
the
Placement Agreement and other related agreements providing for the sale
of the
Capital Securities or the resale thereof by the Purchaser.
ARTICLE
IV
TRUSTEES
AND ADMINISTRATORS
Section
4.1.
Number
of Trustees
.
The
number of Trustees initially shall be two, and:
(a)
at
any
time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
(b)
after
the
issuance of any Securities, the number of Trustees may be increased or
decreased
by vote of the Holder of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holder of the Common
Securities;
provided
,
however
,
that
there shall be a Delaware Trustee if required by Section 4.2; and there
shall
always be one Trustee who shall be the Institutional Trustee, and such
Trustee
may also serve as Delaware Trustee if it meets the applicable requirements,
in
which case Section 2.11 shall have no application to such entity in its
capacity
as Institutional Trustee.
Section
4.2.
Delaware
Trustee
.
If
required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall
be:
(a)
a
natural
person who is a resident of the State of Delaware and a U.S. Person at
least 21
years of age; or
(b)
if
not a
natural person, an entity which is organized under the laws of the United
States
or any state thereof or the District of Columbia, has its principal place
of
business in the State of Delaware, and otherwise meets the requirements
of
applicable law, including §3807 of the Statutory Trust Act.
The
initial Delaware Trustee shall be Wilmington Trust Company.
Section
4.3.
Institutional
Trustee; Eligibility
.
(a)
There
shall at all times be one Trustee that shall act as Institutional Trustee
which
shall:
(i)
not
be an
Affiliate of the Sponsor;
(ii)
not
offer
or provide credit or credit enhancement to the Trust; and
(iii)
be
a
banking corporation or national association organized and doing business
under
the laws of the United States of America or any state thereof or of the
District
of Columbia and authorized under such laws to exercise corporate trust
powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state
or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to
the
requirements of the supervising or examining authority referred to above,
then
for the purposes of this Section 4.3(a)(iii), the combined capital and
surplus
of such corporation or national association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so
published.
(b)
If
at any
time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the
manner
and with the effect set forth in Section 4.5.
(c)
If
the
Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to this Declaration.
(d)
The
initial Institutional Trustee shall be
Wilmington
Trust Company
.
Section
4.4.
Administrators
.
Each
Administrator shall be a U.S. Person. There shall at all times be at least
one
Administrator. Except where a requirement for action by a specific number
of
Administrators is expressly set forth in this Declaration and except
with
respect to any action the taking of which is the subject of a meeting
of the
Administrators, any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may
be
exercised by, or with the consent of, any one such Administrator acting
alone.
Section
4.5.
Appointment,
Removal and Resignation of the Trustees and the Administrators
.
(a)
No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
in
accordance with the applicable requirements of this Section.
(b)
Subject
to Section 4.5(a), a Relevant Trustee may resign at any time by giving
written
notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee. Upon the resignation of the Institutional Trustee, the
Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges
to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense
and
charges (the “Successor Institutional Trustee”). If the instrument of acceptance
by the successor Relevant Trustee required by this Section shall not have
been
delivered to the Relevant Trustee within 60 days after the giving of such
notice
of resignation or delivery of the instrument of removal, the Relevant Trustee
may petition, at the expense of the Trust, any federal, state or District
of
Columbia court of competent jurisdiction for the appointment of a successor
Relevant Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Relevant Trustee. The Institutional
Trustee shall have no liability for the selection of such successor pursuant
to
this Section.
(c)
Unless
an
Event of Default shall have occurred and be continuing, any Trustee may
be
removed at any time by an act of the Holders of a Majority in liquidation
amount
of the Common Securities. If any Trustee shall be so removed, the Holders
of the
Common Securities, by act of the Holders of a Majority in liquidation amount
of
the Common Securities delivered to the Relevant Trustee, shall promptly
appoint
a successor Relevant Trustee, and such successor Relevant Trustee shall
comply
with the applicable requirements of this Section. If an Event of Default
shall
have occurred and be continuing, the Institutional Trustee or the Delaware
Trustee, or both of them, may be removed by the act of the Holders of a
Majority
in liquidation amount of the Capital Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). If any
Trustee
shall be so removed, the Holders of Capital Securities, by act of the Holders
of
a Majority in liquidation amount of the Capital Securities then outstanding
delivered to the Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Relevant Trustee shall comply with
the
applicable requirements of this Section. If no successor Relevant Trustee
shall
have been so appointed by the Holders of a Majority in liquidation amount
of the
Capital Securities and accepted appointment in the manner required by this
Section within 30 days after delivery of an instrument of removal, the
Relevant
Trustee or any Holder who has been a Holder of the Securities for at least
six
months may, on behalf of himself and all others similarly situated, petition
any
federal, state or District of Columbia court of competent jurisdiction
for
the
appointment of a successor Relevant Trustee. Such court may thereupon,
after
prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trustee or Trustees.
(d)
The
Institutional Trustee shall give notice of each resignation and each removal
of
a Trustee and each appointment of a successor Trustee to all Holders and
to the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee.
(e)
Notwithstanding
the foregoing or any other provision of this Declaration, in the event
a
Delaware Trustee who is a natural person dies or is adjudged by a court
to have
become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section (with the successor being a Person who satisfies
the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the “Successor Delaware Trustee”).
(f)
In
case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
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 Securities
and the
Trust and (b) shall add to or change any of the provisions of this Declaration
as shall be necessary to provide for or facilitate the administration of
the
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, shall become vested with all the rights, powers, trusts
and
duties of the retiring Relevant Trustee; but, on request of the Trust or
any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property,
all
proceeds thereof and money held by such retiring Relevant Trustee hereunder
with
respect to the Securities and the Trust subject to the payment of all unpaid
fees, expenses and indemnities of such retiring Relevant Trustee.
(g)
No
Institutional Trustee or Delaware Trustee shall be liable for the acts
or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(h)
The
Holders of the Capital Securities will have no right to vote to appoint,
remove
or replace the Administrators, which voting rights are vested exclusively
in the
Holders of the Common Securities.
(i)
Any
Successor Delaware Trustee shall file an amendment to the Certificate of
Trust
with the Secretary of State of the State of Delaware identifying the name
and
principal place of business of such Delaware Trustee in the State of
Delaware.
Section
4.6.
Vacancies
Among Trustees
.
If a
Trustee ceases to hold office for any reason and the number of Trustees
is not
reduced pursuant to Section 4.1, or if the number of Trustees is increased
pursuant to Section 4.1, a vacancy shall occur. A resolution certifying
the
existence of such vacancy by the Trustees or, if there are more than two,
a
majority of the Trustees shall be conclusive evidence of the existence
of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with
Section 4.5.
Section
4.7.
Effect
of Vacancies
.
The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not
operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy
is
filled by the appointment of a Trustee in accordance with Section 4.5,
the
Institutional Trustee shall have all the powers granted to the Trustees
and
shall discharge all the duties imposed upon the Trustees by this
Declaration.
Section
4.8.
Meetings
of the Trustees and the Administrators
.
Meetings of the Trustees or the Administrators shall be held from time
to time
upon the call of any Trustee or Administrator, as applicable. Regular meetings
of the Trustees and the Administrators, respectively, may be in person
in the
United States or by telephone, at a place (if applicable) and time fixed
by
resolution of the Trustees or the Administrators, as applicable. Notice
of any
in-person meetings of the Trustees or the Administrators shall be hand
delivered
or otherwise delivered in writing (including by facsimile, with a hard
copy by
overnight courier) not less than 48 hours before such meeting. Notice of
any
telephonic meetings of the Trustees or the Administrators or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by
facsimile, with a hard copy by overnight courier) not less than 24 hours
before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or
by
telephone) of a Trustee or an Administrator, as the case may be, at a meeting
shall constitute a waiver of notice of such meeting except where a Trustee
or an
Administrator, as the case may be, attends a meeting for the express purpose
of
objecting to the transaction of any activity on the ground that the meeting
has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Trustees or the Administrators, as the case
may
be, may be taken at a meeting by vote of a majority of the Trustees or
the
Administrators present (whether in person or by telephone) and eligible
to vote
with respect to such matter;
provided
,
that,
in the case of the Administrators, a Quorum is present, or without a meeting
by
the unanimous written consent of the Trustees or the Administrators, as
the case
may be. Meetings of the Trustees and the Administrators together shall
be held
from time to time upon the call of any Trustee or Administrator.
Section
4.9.
Delegation
of Power
.
b)
Any
Trustee or any Administrator, as the case may be, may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the
age of 21 that is a U.S. Person his or her power for the purpose of executing
any documents, instruments or other writings contemplated in Section
2.6.
(b)
The
Trustees shall have power to delegate from time to time to such of their
number
or to any officer of the Trust that is a U.S. Person, the doing of such
things
and the execution of such instruments or other writings either in the name
of
the Trust or the names of the
Trustees
or otherwise as the Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of
the Trust,
as set forth herein.
Section
4.10.
Merger,
Conversion, Consolidation or Succession to Business
.
Any
Person into which the Institutional Trustee or the Delaware Trustee, as
the case
may be, may be merged or converted or with which either may be consolidated,
or
any Person resulting from any merger, conversion or consolidation to which
the
Institutional Trustee or the Delaware Trustee, as the case may be, shall
be a
party, or any Person succeeding to all or substantially all the corporate
trust
business of the Institutional Trustee or the Delaware Trustee, as the case
may
be, shall be the successor of the Institutional Trustee or the Delaware
Trustee,
as the case may be, hereunder, without the execution or filing of any paper
or
any further act on the part of any of the parties hereto, provided such
Person
shall be otherwise qualified and eligible under this Article and,
provided
,
further
,
that
such Person shall file an amendment to the Certificate of Trust with the
Secretary of State of the State of Delaware as contemplated in Section
4.5(i).
ARTICLE
V
DISTRIBUTIONS
Section
5.1.
Distributions
.
Holders
shall receive Distributions in accordance with the applicable terms of
the
relevant Holder’s Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences
set
forth in their respective terms. If and to the extent that the Debenture
Issuer
makes a payment of interest (including any Additional Amounts or Deferred
Interest) or premium, if any, on and/or principal of the Debentures held
by the
Institutional Trustee (the amount of any such payment being a “Payment Amount”),
the Institutional Trustee shall and is directed, to the extent funds are
available in the Property Account for that purpose, to make a distribution
(a
“Distribution”) of the Payment Amount to Holders. For the avoidance of doubt,
funds in the Property Account shall not be distributed to Holders to the
extent
of any taxes payable by the Trust, in the case of withholding taxes, as
determined by the Institutional Trustee or any Paying Agent and, in the
case of
taxes other than withholding taxes, as determined by the Administrators
in a
written notice to the Institutional Trustee.
ARTICLE
VI
ISSUANCE
OF SECURITIES
Section
6.1.
General
Provisions Regarding Securities
.
(a)
The
Administrators shall on behalf of the Trust issue one series of capital
securities, evidenced by a certificate substantially in the form of Exhibit
A-1,
representing undivided beneficial interests in the assets of the Trust
and
having such terms as are set forth in Annex I (the “Capital Securities”), and
one series of common securities, evidenced by a certificate substantially
in the
form of Exhibit A-2, representing undivided beneficial interests in the
assets
of the Trust and having such terms as are set forth in Annex I (the “Common
Securities”). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common Securities.
The Capital Securities rank
pari
passu
with,
and
payment thereon shall be made Pro Rata with, the Common Securities except
that,
where an Event of Default has occurred and is continuing, the rights
of Holders
of the Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the rights
to
payment of the Holders of the Capital Securities.
(b)
The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature
of any
Administrator. In case any Administrator of the Trust who shall have signed
any
of the Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless
may be
delivered as though the person who signed such Certificates had not ceased
to be
such Administrator. Any Certificate may be signed on behalf of the Trust
by such
person who, at the actual date of execution of such Certificate, shall
be an
Administrator of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such an Administrator. A Capital
Security shall not be valid until the Certificate evidencing it is authenticated
by the manual or facsimile signature of an Authorized Officer of the
Institutional Trustee. Such signature shall be conclusive evidence that
the
Certificate evidencing such Capital Security has been authenticated under
this
Declaration. Upon written order of the Trust signed by one Administrator,
the
Institutional Trustee shall authenticate one or more Certificates evidencing
the
Capital Securities for original issue. The Institutional Trustee may appoint
an
authenticating agent that is a U.S. Person acceptable to the Sponsor to
authenticate Certificates evidencing Capital Securities. A Common Security
need
not be so authenticated and shall be valid upon execution by one or more
Administrators.
(c)
Capital
Securities i
nitially
issued by the Trust to Persons other than QIBs or non-“U.S. Persons” in
“offshore transactions” under, and within the meaning of, Regulation S under the
Securities Act shall be issued in the form of one or more Definitive
Capital
Securities Certificates.
The
Capital Securities initially issued to QIBs
or
non-“U.S. Persons” in “offshore transactions” under, and within the meaning of,
Regulation S under the Securities Act
shall be
issued either (i)
in
the
form of one
or
more
Global
Capital Securities Certificates or (ii)
if
indicated in writing by the Placement Agent to the Sponsor on or prior
to the
Closing Date, in the form of
one
or
more Definitive Capital Securities Certificates. Global Capital Security
Certificates shall be,
except
as
provided in Section 6.4, registered in the name of the Depositary or
its nominee
and deposited with the Depositary or, if not so deposited, held by the
Institutional Trustee as a custodian for the Depositary, for credit by
the
Depositary to the respective accounts of the Depositary Participants
(or such
other accounts as they may direct)
.
The
Trust, as issuer and the Institutional Trustee, as custodian, are hereby
authorized to execute, deliver and perform any letter of representations
and
other similar agreements or writings in connection with Capital Securities
issued in the form of Global Capital Securities.
(d)
The
consideration received by the Trust for the issuance of the Securities
shall
constitute a contribution to the capital of the Trust and shall not constitute
a
loan to the Trust.
(e)
Upon
issuance of the Securities as provided in this Declaration, the Securities
so
issued shall be deemed to be validly issued, fully paid and non-assessable,
and
each Holder thereof shall be entitled to the benefits provided by this
Declaration.
(f)
Every
Person, by virtue of having become a Holder in accordance with the terms
of this
Declaration, shall be deemed to have expressly assented and agreed to
the terms
of, and shall be bound by, this Declaration and the Guarantee.
Section
6.2.
Paying
Agent, Transfer Agent, Calculation Agent and Registrar
.
(a)
The
Trust
shall maintain in Wilmington, Delaware (i) an office or agency where
the
Securities may be presented for payment (the “Paying Agent”) and (ii) an office
or agency where Securities may be presented for registration of transfer
or
exchange (the “Transfer Agent”). The Trust shall keep or cause to be kept at
such office or agency a register (the “Securities Register”) for the purpose of
registering Securities and transfers and exchanges of Securities, such
Securities Register to be held by a registrar (the “Registrar”). The
Administrators may appoint the Paying Agent, the Registrar and the Transfer
Agent, and may appoint one or more additional Paying Agents, one or more
co-Registrars, or one or more co-Transfer Agents in such other locations
as it
shall determine. The term “Paying Agent” includes any additional Paying Agent,
the term “Registrar” includes any additional Registrar or co-Registrar and the
term “Transfer Agent” includes any additional Transfer Agent or co-Transfer
Agent. The Administrators may change any Paying Agent, Transfer Agent
or
Registrar at any time without prior notice to any Holder. The Administrators
shall notify the Institutional Trustee of the name and address of any
Paying
Agent, Transfer Agent and Registrar not a party to this Declaration.
The
Administrators hereby initially appoint the Institutional Trustee to
act as
Paying Agent, Transfer Agent and Registrar for the Capital Securities
and the
Common Securities at its Corporate Trust Office. The Institutional Trustee
or
any of its Affiliates in the United States may act as Paying Agent, Transfer
Agent or Registrar.
(b)
The
Trust
shall also appoint a Calculation Agent, which shall determine the Coupon
Rate in
accordance with the terms of the Securities. The Trust initially appoints
the
Institutional Trustee as Calculation Agent.
Section
6.3.
Form
and Dating
.
(a)
The
Capital Securities shall be evidenced by one or more Certificates, and
the
Institutional Trustee’s certificate of authentication thereon shall be,
substantially in the form of Exhibit A-1, and the Common Securities shall
be
evidenced by one or more Certificates substantially in the form of Exhibit
A-2,
each of which is hereby incorporated in and expressly made a part of
this
Declaration. Certificates may be typed, printed, lithographed or engraved
or may
be produced in any other manner as is reasonably acceptable to the
Administrators, as conclusively evidenced by their execution thereof.
Certificates evidencing Securities may have letters, numbers, notations
or other
marks of identification or designation and such legends or endorsements
required
by law, stock exchange rule, agreements to which the Trust is subject,
if any,
or usage (provided, that any such notation, legend or endorsement is
in a form
acceptable to the Sponsor). The Trust at the direction of the Sponsor
shall
furnish any such legend not contained in Exhibit A-1 to the Institutional
Trustee in writing. Each Capital Security Certificate shall be dated
the date of
its authentication. The terms and provisions of the Securities set forth
in
Annex I and the forms of Certificates set forth in Exhibits A-1 and A-2
are part
of the terms of this Declaration and to the extent applicable, the Institutional
Trustee, the Delaware Trustee, the Administrators and the Sponsor, by
their
execution and delivery of
this
Declaration, expressly agree to such terms and provisions and to be
bound
thereby. Capital Securities will be issued only in blocks having an
aggregate
liquidation amount of not less than $100,000.
(b)
The
Capital Securities are being offered and sold by the Trust initially
pursuant to
the Placement Agreement in the form of a Global Capital Security or one
or more
Definitive Capital Securities, in accordance with Section 6.1(c), and
will be
registered in the name of the Holder thereof, without coupons and with
the
Restricted Securities Legend.
Section
6.4.
Book-Entry
Capital Securities.
(a)
A
Global
Capital Security may be exchanged, in whole or in part, for Definitive
Capital
Securities Certificates registered in the names of the Beneficial Owners
thereof
only if such exchange complies with Article VIII and (i) the Depositary
advises
the Administrators and the Institutional Trustee in writing that the
Depositary
is no longer willing or able to properly discharge its responsibilities
with
respect to the Global Capital Security, and no qualified successor is
appointed
by the Administrators within ninety (90) days of receipt of such notice,
(ii)
the Depositary ceases to be a clearing agency registered under the Exchange
Act
and the Administrators fail to appoint a qualified successor within ninety
(90)
days of obtaining knowledge of such event or (iii) an Indenture Event
of Default
has occurred and is continuing. Upon the occurrence of any event specified
in
clause (i), (ii) or (iii) above, the Administrators shall notify the
Depositary
and instruct the Depositary to notify all Beneficial Owners and the
Institutional Trustee of the occurrence of such event and of the availability
of
Definitive Capital Securities Certificates to Beneficial Owners requesting
the
same. Upon the issuance of Definitive Capital Securities Certificates,
the
Administrators and the Institutional Trustee shall recognize the Persons
in
whose names the Definitive Capital Securities Certificates are registered
in the
Securities Register as the Holders of the Capital Securities evidenced
thereby
for all purposes under this Declaration and the Capital Securities. A
holder of
a Definitive Capital Securities Certificate that is a QIB may upon request,
and
in accordance with the provisions of this Section 6.4 and Article VIII,
exchange
such Definitive Capital Securities Certificate for a beneficial interest
in a
Global Capital Security.
(b)
If
any
Global Capital Security is to be exchanged for Definitive Capital Securities
Certificates or canceled in part, or if any Definitive Capital Securities
Certificate is to be exchanged in whole or in part for any Global Capital
Security, then either (i) such Global Capital Security shall be so surrendered
for exchange or cancellation as provided in this Section 6.4 and Article
VIII or
(ii) the aggregate liquidation amount represented by such Global Capital
Security shall be reduced or increased, subject to Section 8.2(d), by
an amount
equal to the liquidation amount represented by that portion of the Global
Capital Security to be so exchanged or canceled, or equal to the liquidation
amount represented by such Definitive Capital Securities Certificates
to be so
exchanged for any Global Capital Security, as the case may be, by means
of an
appropriate adjustment made on the records of the Registrar, whereupon
the
Institutional Trustee, in accordance with the Applicable Depositary Procedures,
shall instruct the Depositary or its authorized representative to make
a
corresponding adjustment to its records. Upon any such surrender or adjustment
to the Administrators or the Registrar of any Global Capital Security
or
Securities by the Depositary, accompanied by registration instructions,
the
Administrators, or any one of them, shall execute and the Institutional
Trustee
shall
authenticate and deliver Definitive Capital Securities Certificates
issuable in
exchange for such Global Capital Securities (or any portion thereof)
in
accordance with the instructions of the Depositary. The Registrar,
Administrators and the Institutional Trustee may conclusively rely
on, and shall
be fully protected in relying on, such instructions.
(c)
Every
Definitive Capital Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Capital
Security or any portion thereof shall be executed and delivered in the
form of,
and shall be, a Global Capital Security, unless such Definitive Capital
Securities Certificate is registered in the name of a Person other than
the
Depositary for such Global Capital Security or a nominee thereof.
(d)
The
Depositary or its nominee, as registered owner of a Global Capital Security,
shall be the Holder of such Global Capital Security for all purposes
under this
Declaration and the Global Capital Security, and Beneficial Owners with
respect
to a Global Capital Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Registrar, the Administrators and
the
Institutional Trustee shall be entitled to deal with the Depositary for
all
purposes of this Declaration relating to the Global Capital Securities
as the
sole Holder of the Book-Entry Capital Securities represented thereby
and shall
have no obligations to the Beneficial Owners thereof. None of the
Administrators, the Institutional Trustee nor the Registrar shall have
any
liability in respect of any transfers effected by the Depositary.
(e)
The
rights of the Beneficial Owners of the Book-Entry Capital Securities
shall be
exercised only through the Depositary and shall be limited to those established
by law, the Applicable Depositary Procedures and agreements between such
Beneficial Owners and the Depositary and/or its Depositary Participants;
provided, solely for the purpose of determining whether the Holders of
the
requisite amount of Capital Securities have voted on any matter provided
for in
this Declaration, to the extent that Capital Securities are represented
by a
Global Capital Security, the Administrators and the Institutional Trustee
may
conclusively rely on, and shall be fully protected in relying on, any
written
instrument (including a proxy) delivered to the Institutional Trustee
by the
Depositary setting forth the Beneficial Owners’ votes or assigning the right to
vote on any matter to any other Persons either in whole or in part. To
the
extent that Capital Securities are represented by a Global Capital Security,
the
initial Depositary will make book-entry transfers among the Depositary
Participants and receive and transmit payments on the Capital Securities
that
are represented by a Global Capital Security to such Depositary Participants,
and none of the Sponsor, the Administrators or the Institutional Trustee
shall
have any responsibility or obligation with respect thereto.
(f)
To
the
extent that a notice or other communication to the Holders is required
under
this Declaration, for so long as Capital Securities are represented by
a Global
Capital Security, the Administrator and the Institutional Trustee shall
give all
such notices and communications to the Depositary, and shall have no
obligations
to the Beneficial Owners.
Section
6.5.
Mutilated,
Destroyed, Lost or Stolen Certificates
.
If (a)
any mutilated Certificate should be surrendered to the Registrar, or
if the
Registrar shall receive evidence to its satisfaction of the destruction,
loss or
theft of any Certificate and (b) the related Holder shall deliver to
the
Registrar, the Administrators and the Institutional Trustee such
security
or indemnity as may be reasonably required by them to keep each of
them
harmless, then, in the absence of notice that such Certificate shall
have been
acquired by a bona fide purchaser, an Administrator on behalf of the
Trust shall
execute (and in the case of a Capital Security Certificate, the Institutional
Trustee shall authenticate) and deliver to such Holder, in exchange
for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate,
a new
Certificate of like denomination. In connection with the issuance of
any new
Certificate under this Section, the Registrar or the Administrators
may require
such Holder to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any Certificate
executed and
delivered pursuant to this Section shall constitute conclusive evidence
of an
ownership interest in the relevant Securities, as if originally issued,
whether
or not the lost, stolen or destroyed Certificate shall be found at
any
time.
Section
6.6.
Temporary
Certificates
.
Until
definitive Certificates are ready for delivery, the Administrators may
prepare
and execute on behalf of the Trust and, in the case of Capital Security
Certificates, the Institutional Trustee shall authenticate, temporary
Certificates. Temporary Certificates shall be substantially in the form
of
definitive Certificates but may have variations that the Administrators
consider
appropriate for temporary Certificates. Without unreasonable delay, the
Administrators shall prepare and execute on behalf of the Trust and,
in the case
of the Capital Security Certificates, the Institutional Trustee shall
authenticate definitive Certificates in exchange for temporary
Certificates.
Section
6.7.
Cancellation
.
The
Administrators at any time may deliver Certificates evidencing Securities
to the
Institutional Trustee for cancellation. The Registrar shall forward to
the
Institutional Trustee any Certificates evidencing Securities surrendered
to it
for registration of transfer, redemption or payment. The Institutional
Trustee
shall promptly cancel all Certificates surrendered for registration of
transfer,
payment, replacement or cancellation and shall dispose of such canceled
Certificates as the Administrators direct. The Administrators may not
issue new
Certificates to replace Certificates evidencing Securities that have
been paid
or, except for Certificates surrendered for purposes of the transfer
or exchange
of the Securities evidenced thereby, that have been delivered to the
Institutional Trustee for cancellation.
Section
6.8.
Rights
of Holders; Waivers of Past Defaults
.
(a)
The
legal
title to the Trust Property is vested exclusively in the Institutional
Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders
shall
not have any right or title therein other than the undivided beneficial
interest
in the assets of the Trust conferred by their Securities and they shall
have no
right to call for any partition or division of property, profits or rights
of
the Trust except as described below. The Securities shall be personal
property
giving only the rights specifically set forth therein and in this Declaration.
The Securities shall have no, and the issuance of the Securities shall
not be
subject to, preemptive or other similar rights and when issued and delivered
to
Holders against payment of the purchase price therefor, the Securities
will be
fully paid and nonassessable by the Trust.
(b)
For
so
long as any Capital Securities remain outstanding, if, upon an Indenture
Event
of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or (i) of
the
Indenture, the Debenture Trustee fails or the holders of not less than
25% in
principal amount of the
outstanding
Debentures fail to declare the principal of all of the Debentures to
be
immediately due and payable, the Holders of not less than a Majority
in
liquidation amount of the Capital Securities then outstanding shall
have the
right to make such declaration by a notice in writing to the Institutional
Trustee, the Sponsor and the Debenture Trustee.
(c)
At
any
time after the acceleration of maturity of 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 provided in the Indenture, if the Institutional
Trustee, subject to the provisions hereof, fails to annul any such acceleration
and waive such default, the Holders of a Majority in liquidation amount
of the
Capital Securities, by written notice to the Institutional Trustee, the
Sponsor
and the Debenture Trustee, may rescind and annul such acceleration and
its
consequences if:
(i)
the
Sponsor 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 Deferred Interest on all of the Debentures;
(C)
all
payments on any Debentures that have become due otherwise than by such
acceleration and interest and Deferred Interest 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, documented expenses, disbursements and advances of the
Debenture
Trustee and the Institutional 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 or premium, if any, on the Debentures that has become
due
solely by such acceleration, have been cured or waived as provided in
Section
5.07 of the Indenture.
(d)
The
Holders of 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, except a Default or Event of Default arising from the
non-payment of principal of or premium, if any, or interest on the Debentures
(unless such Default or Event of Default has been cured and a sum sufficient
to
pay all matured installments of interest, premium and principal due otherwise
than by acceleration has been deposited with the Debenture Trustee) or
a Default
or Event of 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.
(e)
Upon
receipt by the Institutional 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 Institutional 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.
(f)
Except
as
otherwise provided in this Section, the Holders of 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 Declaration, but no such
waiver
shall extend to any subsequent or other Default or Event of Default or
impair
any right consequent thereon.
ARTICLE
VII
DISSOLUTION
AND TERMINATION OF TRUST
Section
7.1.
Dissolution
and Termination of Trust
.
a)
The
Trust
shall dissolve on the first to occur of :
(i)
unless
earlier dissolved, on November 23, 2040, the expiration of the term of
the
Trust;
(ii)
a
Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
(iii)
other
than in connection with a merger, consolidation or similar transaction
not
prohibited by the Indenture, this Declaration or the Guarantee, as the
case may
be, the filing of a certificate of dissolution or its equivalent with
respect to
the Sponsor or upon the revocation of the charter of the Sponsor and
the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iv)
the
distribution of all of the Debentures to the Holders of the Securities,
upon
exercise of the right of the Holders of all of the outstanding Common
Securities
to dissolve the Trust as provided in Annex I hereto;
(v)
the
entry
of a decree of judicial dissolution of any Holder of the Common Securities,
the
Sponsor, the Trust or the Debenture Issuer;
(vi)
when
all
of the Securities are then subject to redemption and the amounts necessary
for
redemption thereof shall have been paid to the Holders in accordance
with the
terms of the Securities; or
(vii)
before
the issuance of any Securities, with the consent of all of the Trustees
and the
Sponsor.
(b)
As
soon
as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust
as
required by applicable law, including §3808 of the Statutory Trust Act, and
subject to the terms set forth in Annex I, the Institutional Trustee
shall
terminate the Trust by filing a certificate of cancellation with the
Secretary
of State of the State of Delaware.
(c)
The
provisions of Section 2.9 and Article IX shall survive the termination
of the
Trust.
ARTICLE
VIII
TRANSFER
OF INTERESTS
Section
8.1.
General
.
a
)
Subject
to Section 6.4 and Section 8.1(c), when
a Holder
of Capital Securities delivers to the Registrar in accordance with this
Declaration a request to register a transfer of such Holder’s Capital Securities
or to exchange them for an equal aggregate liquidation amount of Capital
Securities represented by different Certificates, the Registrar shall
register
the transfer or make the exchange when the requirements provided for
herein for
such transfer or exchange are met. To facilitate registrations of transfers
and
exchanges, the Trust shall execute and the Institutional Trustee shall
authenticate Capital Security Certificates at the Registrar’s
request.
(b)
Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and, for so
long as the
Securities remain outstanding, the Sponsor shall maintain 100% ownership
of the
Common Securities; provided, however, that any permitted successor of
the
Debenture Issuer under the Indenture may succeed to the Sponsor’s ownership of
the Common Securities.
(c)
Capital
Securities may only be transferred, in whole or in part, in accordance
with the
terms and conditions set forth in this Declaration and in the terms of
the
Capital Securities. To the fullest extent permitted by applicable law,
any
transfer or purported transfer of any Capital Security not made in accordance
with this Declaration shall be null and void and will be deemed to be
of no
legal effect whatsoever and any such purported transferee shall be deemed
not to
be the Holder of such Capital Securities for any purpose, including,
but not
limited to, the receipt of Distributions on such Capital Securities,
and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
(d)
The
Registrar shall provide in the Securities Register for the registration
of
Securities and of transfers of Securities, which will be effected without
charge
but only upon payment (with such indemnity as the Registrar may reasonably
require) in respect of any tax or other governmental charges that may
be imposed
in relation to it.
With
respect to Capital Securities that are not Book-Entry Capital Securities,
upon
its receipt of the documents required under this Section 8.1(d) for registration
of transfer of any Securities, the Registrar shall register in the Securities
Register, in the name of the designated transferee or transferees, the
Securities being transferred and thereupon, for all purposes of this
Declaration, such transfer shall be effective and such transferee or
transferees
shall be, and such transferor shall no longer be, the Holder of the transferred
Securities. Upon the registration of transfer of a Security pursuant
to the
terms of this Declaration in the name of the new Holder thereof, such
Security
shall constitute the same Security as the Security so transferred and
shall be
entitled to the same benefits under this Declaration as the Security
so
transferred. The Registrar shall, and is authorized to, record and register
in
the Securities Register the transfer of a Security upon the Registrar’s receipt
of originals or copies (which may be by facsimile or other form of electronic
transmission) of (i) a written instrument of transfer in form reasonably
satisfactory to the Registrar duly executed by the Holder or such Holder’s
attorney duly authorized in writing, and (ii) if such Security is being
transferred prior to the Resale Restriction Termination Date other than
in
accordance with Section 8.4, a certificate substantially in the form
set forth
as Exhibit C, D or E, as applicable, hereto, executed by the transferor
or
transferee, as applicable; thereupon, the Registrar is authorized to
confirm in
writing to the transferee and, if requested, to the transferor of such
Security
that such transfer has been registered in the Securities Register and
that such
transferee is the Holder of such Security. The Definitive Capital Securities
Certificate so transferred, duly endorsed by the transferor, shall be
surrendered to the Registrar at the time the transfer conditions specified
in
the immediately preceding sentence are satisfied or within five (5) Business
Days after the Registrar has registered the transfer of such Security
on the
Securities Register, and promptly after such surrender, an Administrator
on
behalf of the Trust shall execute and the Institutional Trustee shall,
and is
authorized to, authenticate a Certificate in the name of the transferee
or, if
the transferee is a QIB desiring a beneficial interest in a Global Capital
Security, in the name of the Depositary or its nominee, as applicable,
as the
new Holder of the Security evidenced thereby. Until the Definitive Capital
Securities Certificate evidencing the Security so transferred is surrendered
to
the Registrar, such Security may not be transferred by such new
Holder.
Each
Definitive Capital Securities Certificate surrendered in connection with
a
registration of transfer shall be canceled by the Institutional Trustee
pursuant
to Section 6.7. A transferee of a Security shall be entitled to the rights
and
subject to the obligations of a Holder hereunder upon the registration
of such
transfer in the Securities Register. Each such transferee shall be deemed
to
have agreed to be bound by this Declaration.
(e)
Neither
the Trust nor the Registrar shall be required (i) to issue Certificates
representing Securities or register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the
day of
any selection of Securities for redemption and ending at the close of
business
on the earliest date on which the relevant notice of redemption is deemed
to
have been given to all Holders of the Securities to be
redeemed,
or (ii) to register the transfer or exchange of any Security so selected
for
redemption in whole or in part, except the unredeemed portion of any
Security
being redeemed in part.
Section
8.2.
Transfer
Procedures and Restrictions
.
(a)
Prior
to
the Resale Restriction Termination Date, Certificates evidencing Capital
Securities shall bear the Restricted Securities Legend. The Restricted
Securities Legend on any Certificate evidencing outstanding Capital Securities
shall not be removed unless there is delivered to the Trust such satisfactory
evidence, which may include an opinion of counsel, as may be reasonably
required
by the Trust, that neither the Restricted Securities Legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of the Securities Act or that such Securities
are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence, the Institutional Trustee, at
the
written direction of the Trust, shall authenticate and deliver Capital
Securities Certificates that do not bear the Restricted Securities Legend
(other
than the first two paragraphs of the legend specified in Section 8.2(c))
in
exchange for the Capital Securities Certificates bearing the Restricted
Securities Legend.
(b)
Prior
to
the Resale Restriction Termination Date, without the written consent
of the
Sponsor, Capital Securities that are not Book-Entry Capital Securities
may only
be transferred: (i) to a QIB if the instrument of transfer is accompanied
by a
certificate of the transferor substantially in the form set forth as
Exhibit D
hereto; (ii) to an “accredited investor” within the meaning of Rule 501(a) (1),
(2), (3), (7) or (8) under the Securities Act if the instrument of transfer
is
accompanied by a certificate of the transferee substantially in the form
set
forth as Exhibit C hereto; or (iii) to a non-“U.S. Person” in an “offshore
transaction” under, and within the meaning of, Regulation S under the Securities
Act if the instrument of transfer is accompanied by a certificate of
the
transferee substantially in the form set forth as Exhibit E hereto. Each
certificate furnished pursuant to this Section 8.2(b) may be an original
or a
copy (which may be furnished by facsimile or other form of electronic
transmission).
(c)
The
Capital Securities may not be transferred prior to the Resale Restriction
Termination Date except in compliance with restrictions on transfer set
forth in
the legend set forth below (the “Restricted Securities Legend”), and except as
otherwise contemplated in Section 8.2(a), prior to the Resale Restriction
Termination Date, each Certificate evidencing outstanding Capital Securities
shall bear the Restricted Securities Legend:
[THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE DECLARATION HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR CAPITAL
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION, AND NO TRANSFER
OF
THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY DTC
TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE
OF DTC) MAY
BE REGISTERED EXCEPT IN THE CIRCUMSTANCES SPECIFIED IN THE
DECLARATION.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
THE TRUST
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
1
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL
OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD
OF TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER
OF (Y) THE
DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE TRUST
OR ANY
AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE TRUST
WAS THE
HOLDER OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR
THERETO) AND (ii) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY
SUBSEQUENT
CHANGE IN APPLICABLE LAW, ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST,
(B)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE
HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER,” AS DEFINED IN
RULE 144A, 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) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER
THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR SUCH INTEREST OR PARTICIPATION
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR,
FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT
TO
OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
PURSUANT
TO REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
1 Only applicable to Global Capital Securities
AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO
THE RIGHT OF THE DEBENTURE ISSUER AND THE TRUST PRIOR TO ANY SUCH OFFER,
SALE OR
TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY
OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF
TRUST, A COPY
OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE
HOLDER OF
THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE
HEREOF
OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE
FOREGOING
RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY
SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF
OR
THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION
4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF
AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
ASSETS OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER
TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION
AS MAY BE
REQUIRED BY THE
AMENDED
AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE
FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000
IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A
LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.
(d)
Capital
Securities may only be transferred in minimum blocks of $100,000 aggregate
liquidation amount (100 Capital Securities) and multiples of $1,000 in
excess
thereof. Any attempted transfer of Capital Securities in a block having
an
aggregate liquidation amount of less than $100,000 shall be deemed to
be void
and of no legal effect whatsoever. Any such purported transferee shall
be deemed
not to be a Holder of such Capital Securities for any purpose, including,
but
not limited to, the receipt of Distributions on such Capital Securities,
and
such purported transferee shall be deemed to have no interest whatsoever
in such
Capital Securities.
Section
8.3.
Deemed
Security Holders
.
The
Trust, the Administrators, the Trustees, the Paying Agent, the Transfer
Agent or
the Registrar may treat the Person in whose name any Security shall be
registered on the Securities Register of the Trust as the sole Holder
and owner
of such Security for purposes of receiving Distributions and for all
other
purposes whatsoever and, accordingly, shall not be bound to recognize
any
equitable or other claim to or interest in such Security on the part
of any
other Person, whether or not the Trust, the Administrators, the Trustees,
the
Paying Agent, the Transfer Agent or the Registrar shall have actual or
other
notice thereof.
Section
8.4.
Transfer
of Initial Securities
.
With
respect to Capital Securities that are not Book-Entry Capital Securities,
and
notwithstanding the foregoing provisions of this Article VIII or any
other
provision of this Declaration (including all Annexes and Exhibits hereto)
to the
contrary, any or all of the Capital Securities initially issued to the
Purchaser
(the “Initial Securities”) may be transferred by the Purchaser to any transferee
selected by it that meets the parameters specified below and, upon delivery
to
the Registrar, of originals or copies (which may be by facsimile or other
form
of electronic transmission) of a written instrument of transfer in form
reasonably satisfactory to the Registrar duly executed by the Purchaser
or the
Purchaser’s attorney duly authorized in writing (it being understood that no
signature guarantee shall be required), then the Registrar shall, and
is
authorized to, record and register on the Securities Register the transfer
of
such Initial Securities to such transferee; thereupon, the Registrar
is
authorized to confirm in writing to the transferee and, if requested,
to the
transferor of such Initial Securities that such transfer has been registered
in
the Securities Register and that such transferee is the Holder of such
Initial
Securities;
provided
,
however
,
that
the Purchaser of
the
Initial Securities, by its acceptance thereof, agrees that it may not
transfer
any Initial Securities prior to the Resale Restriction Termination
Date to any
transferee that is not a QIB, an “accredited investor” within the meaning of
Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act or a
non-“U.S.
Person” in an “offshore transaction” under, and within the meaning of,
Regulation S under the Securities Act. The Definitive Capital Securities
Certificate evidencing the Initial Securities to be transferred, duly
endorsed
by the Purchaser, shall be surrendered to the Registrar at the time
the transfer
conditions specified in the immediately preceding sentence are satisfied
or
within five (5) Business Days after the Registrar has registered the
transfer of
such Initial Securities in the Securities Register, and promptly after
such
surrender, an Administrator on behalf of the Trust shall execute and,
in the
case of a Capital Security Certificate, the Institutional Trustee shall,
and is
authorized to, authenticate a Certificate in the name of the transferee
or, if
the transferee is a QIB desiring a beneficial interest in a Global
Capital
Security, in the name of the Depositary or its nominee, as applicable,
as the
new Holder of the Initial Securities evidenced thereby. Until the Definitive
Capital Securities Certificate evidencing the Initial Securities so
transferred
is surrendered to the Registrar, such Initial Securities may not be
transferred
by such new Holder. No other conditions, restrictions or other provisions
of
this Declaration or any other document shall apply to a transfer of
Initial
Securities by the Purchaser.
ARTICLE
IX
LIMITATION
OF LIABILITY OF
HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
Section
9.1.
Liability
.
(a)
Except as expressly set forth in this Declaration, the Guarantee and
the terms
of the Securities, the Sponsor shall not be:
(i)
personally
liable for the return of any portion of the capital contributions (or
any return
thereon) of the Holders of the Securities which shall be made solely
from assets
of the Trust; and
(ii)
required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
(b)
The
Holder of the Common Securities shall be liable for all of the debts
and
obligations of the Trust (other than with respect to the Securities)
to the
extent not satisfied out of the Trust’s assets.
(c)
Pursuant
to § 3803(a) of the Statutory Trust Act, the Holders of the Securities shall
be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation
Law
of the State of Delaware, except as otherwise specifically set forth
herein.
Section
9.2.
Exculpation
.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages
or
otherwise to the Trust or any Covered Person for any loss, damage or
claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner
such
Indemnified
Person
reasonably believed to be within the scope of the authority conferred
on such
Indemnified Person by this Declaration or by law, except that an Indemnified
Person
(other than an Administrator) shall be liable for any such loss, damage
or claim
incurred by reason of such Indemnified Person’s negligence, willful misconduct
or bad faith with respect to such acts or omissions and except that
an
Administrator shall be liable for any such loss, damage or claim incurred
by
reason of such Administrator’s gross negligence, willful misconduct or bad faith
with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith
upon the
records of the Trust and upon such information, opinions, reports or
statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence and, if selected by such Indemnified Person, has been selected
by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value
and
amount of the assets, liabilities, profits, losses or any other facts
pertinent
to the existence and amount of assets from which Distributions to Holders
of
Securities might properly be paid.
Section
9.3.
Fiduciary
Duty
.
(a)
To
the
extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to
any other
Covered Person, an Indemnified Person acting under this Declaration shall
not be
liable to the Trust or to any other Covered Person for its good faith
reliance
on the provisions of this Declaration. The provisions of this Declaration,
to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties
imposed on
the Institutional Trustee under the Trust Indenture Act), are agreed
by the
parties hereto to replace such other duties and liabilities of the Indemnified
Person.
(a)
Whenever
in this Declaration an Indemnified Person is permitted or required to
make a
decision:
(i)
in
its
“discretion” or under a grant of similar authority, the Indemnified Person shall
be entitled to consider such interests and factors as it desires, including
its
own interests, and shall have no duty or obligation to give any consideration
to
any interest of or factors affecting the Trust or any other Person;
or
(ii)
in
its
“good faith” or under another express standard, the Indemnified Person shall act
under such express standard and shall not be subject to any other or
different
standard imposed by this Declaration or by applicable law.
Section
9.4.
Indemnification
.
(a)
(i)
The
Sponsor shall indemnify, to the fullest extent permitted by law, any
Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil,
criminal, administrative or investigative (other than an action by or
in the
right of the Trust) by reason of the fact that such Person is or was
an
Indemnified
Person
against expenses
(including attorneys’ fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such Person in connection
with
such action, suit or proceeding if such Person acted in good faith
and in a
manner such Person reasonably believed to be in or not opposed to the
best
interests of the Trust, and, with respect to any criminal action or
proceeding,
had no reasonable cause to believe such conduct was unlawful. The termination
of
any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a
presumption that the Indemnified Person did not act in good faith and
in a
manner which such Person reasonably believed to be in or not opposed
to the best
interests of the Trust, and, with respect to any criminal action or
proceeding,
had reasonable cause to believe that such conduct was
unlawful.
(ii)
The
Sponsor shall indemnify, to the fullest extent permitted by law, any
Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the Trust
to procure a judgment in its favor by reason of the fact that such Person
is or
was an Indemnified Person against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by such Person in connection
with the
defense or settlement of such action or suit if such Person acted in
good faith
and in a manner such Person reasonably believed to be in or not opposed
to the
best interests of the Trust and except that no such indemnification shall
be
made in respect of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust unless and
only to the
extent that the Court of Chancery of Delaware or the court in which such
action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such
Person is fairly and reasonably entitled to indemnity for such expenses
which
such Court of Chancery or such other court shall deem proper.
(iii)
To
the
extent that an Indemnified Person shall be successful on the merits or
otherwise
(including dismissal of an action without prejudice or the settlement
of an
action without admission of liability) in defense of any action, suit
or
proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a),
or in
defense of any claim, issue or matter therein, such Person shall be indemnified,
to the fullest extent permitted by law, against expenses (including attorneys’
fees and expenses) actually and reasonably incurred by such Person in
connection
therewith.
(iv)
Any
indemnification of an Administrator under paragraphs (i) and (ii) of
this
Section 9.4(a) (unless ordered by a court) shall be made by the Sponsor
only as
authorized in the specific case upon a determination that indemnification
of the
Indemnified Person is proper in the circumstances because such Person
has met
the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such
determination shall be made (A) by the Administrators by a majority vote
of a
Quorum consisting of such Administrators who were not parties to such
action,
suit
or
proceeding, (B) if such a Quorum is not obtainable, or, even if obtainable,
if a
Quorum of disinterested Administrators so directs, by independent legal
counsel
in a written opinion, or (C) by the Common Security Holder of the
Trust.
(v)
To
the
fullest extent permitted by law, expenses (including attorneys’ fees and
expenses) incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in
paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Sponsor
in
advance of the final disposition of such action, suit or proceeding upon
receipt
of an undertaking by or on behalf of such Indemnified Person to repay
such
amount if it shall ultimately be determined that such Person is not entitled
to
be indemnified by the Sponsor as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a
determination is reasonably and promptly made (1) in the case of a Company
Indemnified Person (A) by the Administrators by a majority vote of a
Quorum of
disinterested Administrators, (B) if such a Quorum is not obtainable,
or, even
if obtainable, if a Quorum of disinterested Administrators so directs,
by
independent legal counsel in a written opinion or (C) by the Common Security
Holder of the Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such determination
is made,
such Indemnified Person acted in bad faith or in a manner that such Person
either believed to be opposed to or did not believe to be in the best
interests
of the Trust, or, with respect to any criminal proceeding, that such
Indemnified
Person believed or had reasonable cause to believe such conduct was unlawful,
or
(2) in the case of a Fiduciary Indemnified Person, by independent legal
counsel
in a written opinion that, based upon the facts known to the counsel
at the time
such determination is made, such Indemnified Person acted in bad faith
or in a
manner that such Indemnified Person either believed to be opposed to
or did not
believe to be in the best interests of the Trust, or, with respect to
any
criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe such conduct was unlawful. In no event shall any advance
be
made (i) to a Company Indemnified Person in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably determine
that such Person deliberately breached such Person’s duty to the Trust or its
Common or Capital Security Holders or (ii) to a Fiduciary Indemnified
Person in
instances where independent legal counsel promptly and reasonably determines
in
a written opinion that such Person deliberately breached such Person’s duty to
the Trust or its Common or Capital Security Holders.
(b)
The
Sponsor shall indemnify, to the fullest extent permitted by applicable
law, each
Indemnified Person from and against any and all loss, damage, liability,
tax
(other than taxes based on the income of such Indemnified Person), penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person arising out of or in connection with or by reason of the creation,
administration or termination of the Trust, or any act or omission of
such
Indemnified Person in good faith on behalf of the Trust and in a manner
such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such
Indemnified
Person by this Declaration, except that no Indemnified Person shall
be entitled
to be indemnified in respect of any loss, damage, liability, tax, penalty,
expense or claim incurred by such Indemnified Person by reason of negligence,
willful misconduct or bad faith with respect to such acts or
omissions.
(c)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other paragraphs of this Section shall not be deemed exclusive of
any other
rights to which those seeking indemnification and advancement of expenses
may be
entitled under any agreement, vote of stockholders or disinterested directors
of
the Sponsor or Capital Security Holders of the Trust or otherwise, both
as to
action in such Person’s official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this Section
shall be deemed to be provided by a contract between the Sponsor and
each
Indemnified Person who serves in such capacity at any time while this
Section is
in effect. Any repeal or modification of this Section shall not affect
any
rights or obligations then existing.
(d)
The
Sponsor or the Trust may purchase and maintain insurance on behalf of
any Person
who is or was an Indemnified Person against any liability asserted against
such
Person and incurred by such Person in any such capacity, or arising out
of such
Person’s status as such, whether or not the Sponsor would have the power to
indemnify such Person against such liability under the provisions of
this
Section.
(e)
For
purposes of this Section, references to “the Trust” shall include, in addition
to the resulting or surviving entity, any constituent entity (including
any
constituent of a constituent) absorbed in a consolidation or merger,
so that any
Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another
entity,
shall stand in the same position under the provisions of this Section
with
respect to the resulting or surviving entity as such Person would have
with
respect to such constituent entity if its separate existence had
continued.
(f)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Section shall, unless otherwise provided when authorized or ratified,
continue as to a Person who has ceased to be an Indemnified Person and
shall
inure to the benefit of the heirs, executors and administrators of such
a
Person.
(g)
The
provisions of this Section shall survive the termination of this Declaration
or
the earlier resignation or removal of the Institutional Trustee. The
obligations
of the Sponsor under this Section to compensate and indemnify the Trustees
and
to pay or reimburse the Trustees for expenses, disbursements and advances
shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall
be secured by a lien prior to that of the Securities upon all property
and funds
held or collected by the Trustees as such, except funds held in trust
for the
benefit of the Holders of particular Capital Securities,
provided
,
that
the Sponsor is the Holder of the Common Securities.
Section
9.5.
Outside
Businesses
.
Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee
(subject to Section 4.3(c)) 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 Trust, and the Trust and
the
Holders of Securities shall have no rights by virtue of this Declaration
in and
to such independent ventures or the income or profits derived therefrom,
and the
pursuit of any such venture, even if competitive with the business
of the Trust,
shall not be deemed wrongful or improper. None of any Covered Person,
the
Sponsor, the Delaware Trustee or the Institutional Trustee shall be
obligated to
present any particular investment or other opportunity to the Trust
even if such
opportunity is of a character that, if presented to the Trust, could
be taken by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others
any such
particular investment or other opportunity. Any Covered Person, the
Delaware
Trustee and the Institutional Trustee may engage or be interested in
any
financial or other transaction with the Sponsor or any Affiliate of
the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee
or
body of holders of, securities or other obligations of the Sponsor
or its
Affiliates.
Section
9.6.
Compensation;
Fee
.
(a) The
Sponsor agrees:
(i)
to
pay to
the Trustees from time to time such compensation for all services rendered
by
them hereunder as the parties shall agree in writing 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); and
(ii)
except
as
otherwise expressly provided herein, to reimburse each of the Trustees
upon
request for all reasonable, documented expenses, disbursements and advances
incurred or made by such Person in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of such Person’s agents and counsel), except any such expense,
disbursement or advance attributable to such Person’s negligence, willful
misconduct or bad faith.
(b)
The
provisions of this Section shall survive the dissolution of the Trust
and the
termination of this Declaration and the removal or resignation of any
Trustee.
ARTICLE
X
ACCOUNTING
Section
10.1.
Fiscal
Year
.
The
fiscal year (the “Fiscal Year”) of the Trust shall be the calendar year, or such
other year as is required by the Code.
Section
10.2.
Certain
Accounting Matters
.
(a)
At
all
times during the existence of the Trust, the Administrators shall keep,
or cause
to be kept, at the principal office of the Trust in the United States,
as
defined for purposes of Treasury Regulations § 301.7701-7, full books of
account, records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of
account
shall be maintained on the accrual method of accounting, in accordance
with
generally accepted accounting principles, consistently
applied.
(b)
The
Sponsor shall cause the Administrators to deliver, by hardcopy or electronic
transmission, (i) to each Holder of Securities each Report on Form 10-K
and Form
10-Q, if any, prepared by the Sponsor and filed with the Commission in
accordance with the Exchange Act, within 10 Business Days after the filing
thereof or (ii) if the Sponsor is (a) not then subject to Section 13
or 15(d) of
the Exchange Act (a “Private Entity”) or (b) exempt from reporting pursuant to
Rule 12g3-2(b) thereunder, the information required by Rule 144A(d)(4)
under the
Securities Act. Notwithstanding the foregoing, so long as a Holder of
the
Capital Securities is the Purchaser or an entity that holds a pool of
trust
preferred securities and/or debt securities as collateral for its securities
or
a trustee thereof, and the Sponsor is (i) a Private Entity that, on the
date of
original issuance of the Capital Securities, is required to provide audited
consolidated financial statements to its primary regulatory authority,
(ii) a
Private Entity that, on the date of original issuance of the Capital
Securities,
is not required to provide audited consolidated financial statements
to its
primary regulatory authority, on the date of original issuance of the
Capital
Securities but subsequently becomes subject to the audited consolidated
financial statement reporting requirements of that regulatory authority
or (iii)
subject to Section 13 or 15(d) of the Exchange Act on the date of original
issuance of the Capital Securities or becomes so subject after the date
hereof
but subsequently becomes a Private Entity, then, within 90 days after
the end of
each fiscal year, beginning with the fiscal year in which the Capital
Securities
were originally issued if the Sponsor was then subject to (x) Section
13 or
15(d) of the Exchange Act or (y) audited consolidated financial statement
reporting requirements of its primary regulatory authority or, otherwise,
the
earliest fiscal year in which the Sponsor becomes subject to (1) Section
13 or
15(d) of the Exchange Act or (2) the audited consolidated financial statement
reporting requirements of its primary regulatory authority, the Sponsor
shall
deliver, by hardcopy or electronic transmission, to each Holder of Securities,
unless otherwise provided pursuant to the preceding sentence, (A) a copy
of the
Sponsor’s audited consolidated financial statements (including balance sheet
and
income statement) covering the related annual period and (B) the report
of the
independent accountants with respect to such financial statements. In
addition
to the foregoing, the Sponsor shall deliver to each Holder of Securities
within
90 days after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust as of
the end of
such Fiscal Year and the statements of income or loss for the Fiscal
Year then
ended, that are prepared at the principal office of the Trust in the
United
States, as defined for purposes of Treasury Regulations §
301.7701-7.
(c)
The
Administrators shall cause to be duly prepared and delivered to each
of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required
by
the Code and the Treasury Regulations. Notwithstanding any right under
the Code
to deliver any such statement at a later date, the Administrators shall
endeavor
to deliver all such statements within 30 days after the end of each Fiscal
Year
of the Trust.
(d)
The
Administrators shall cause to be duly prepared in the United States,
as defined
for purposes of Treasury Regulations § 301.7701-7, and filed an annual United
States
federal
income tax return on a Form 1041 or such other form required by United
States
federal income tax law, and any other annual income tax returns required
to be
filed by the Administrators on behalf of the Trust with any state or
local
taxing authority.
(e)
So
long
as a Holder of the Capital Securities is Greenwich Capital Financial
Products,
Inc. or an entity that holds a pool of trust preferred securities and/or
debt
securities or a trustee thereof, the Sponsor shall cause the Administrators
to
deliver the Sponsor’s reports on Forms FR Y-9C and FR Y-9LP to such Holder
promptly following their filing with the Federal Reserve.
Section
10.3.
Banking
.
The
Trust shall maintain one or more bank accounts in the United States,
as defined
for purposes of Treasury Regulations § 301.7701-7, in the name and for the sole
benefit of the Trust;
provided
,
however
,
that
all payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds
of the
Trust shall be deposited in the Property Account. The sole signatories
for such
accounts (including the Property Account) shall be designated by the
Institutional Trustee.
Section
10.4.
Withholding
.
The
Institutional Trustee or any Paying Agent and the Administrators shall
comply
with all withholding requirements under United States federal, state
and local
law. The Institutional Trustee or any Paying Agent shall request, and
each
Holder shall provide to the Institutional Trustee or any Paying Agent,
such
forms or certificates as are necessary to establish an exemption from
withholding with respect to the Holder, and any representations and forms
as
shall reasonably be requested by the Institutional Trustee or any Paying
Agent
to assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder
to
applicable jurisdictions. To the extent that the Institutional Trustee
or any
Paying Agent is required to withhold and pay over any amounts to any
authority
with respect to distributions or allocations to any Holder, the amount
withheld
shall be deemed to be a Distribution to the Holder in the amount of the
withholding. In the event of any claimed overwithholding, Holders shall
be
limited to an action against the applicable jurisdiction. If the amount
required
to be withheld was not withheld from actual Distributions made, the
Institutional Trustee or any Paying Agent may reduce subsequent Distributions
by
the amount of such withholding.
ARTICLE
XI
AMENDMENTS
AND MEETINGS
Section
11.1.
Amendments
.
(a)
Except as otherwise provided in this Declaration or by any applicable
terms of
the Securities, this Declaration may only be amended by a written instrument
approved and executed by
(i)
the
Institutional Trustee,
(ii)
if
the
amendment affects the rights, powers, duties, obligations or immunities
of the
Delaware Trustee, the Delaware Trustee,
(iii)
if
the
amendment affects the rights, powers, duties, obligations or immunities
of the
Administrators, the Administrators, and
(iv)
the
Holders of a Majority in liquidation amount of the Common
Securities.
(b)
Notwithstanding
any other provision of this Article XI, no amendment shall be made, and
any such
purported amendment shall be void and ineffective:
(i)
unless
the Institutional Trustee shall have first received
(A)
an
Officers’ Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including
the
terms of the Securities); and
(B)
an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that all conditions precedent
to the
execution and delivery of such amendment have been satisfied; or
(ii)
if
the
result of such amendment would be to
(A)
cause
the
Trust to cease to be classified for purposes of United States federal
income
taxation as a grantor trust;
(B)
reduce
or
otherwise adversely affect the powers of the Institutional Trustee in
contravention of the Trust Indenture Act;
(C)
cause
the
Trust to be deemed to be an Investment Company required to be registered
under
the Investment Company Act; or
(D)
cause
the
Debenture Issuer to be unable to treat an amount equal to the liquidation
amount
of the Capital Securities as “Tier 1 Capital” (or its equivalent) for purposes
of the capital adequacy guidelines of the Federal Reserve (or any successor
regulatory authority with jurisdiction over bank holding
companies).
(c)
Except
as
provided in Section 11.1(d), (e) or (g), no amendment shall be
made, and
any such purported amendment shall be void and ineffective, unless the
Holders
of a Majority in liquidation amount of the Capital Securities shall have
consented to such amendment.
(d)
In
addition to and notwithstanding any other provision in this Declaration,
without
the consent of each affected Holder, this Declaration may not be amended
to (i)
change
the
amount or timing of any Distribution on the Securities or any redemption
or
liquidation provisions applicable to the Securities or otherwise adversely
affect the amount of any Distribution required to be made in respect
of the
Securities as of a specified date or (ii) restrict the right of a Holder
to
institute suit for the enforcement of any Distributions or other amounts
on or
after their due date.
(e)
Sections
9.1(b) and 9.1(c) and this Section shall not be amended without the consent
of
all of the Holders of the Securities.
(f)
The
rights of the Holders of the Capital Securities and Common Securities,
as
applicable, under Article IV to increase or decrease the number of, and
appoint
and remove, Trustees shall not be amended without the consent of the
Holders of
a Majority in liquidation amount of the Capital Securities or Common
Securities,
as applicable.
(g)
This
Declaration may be amended by the Institutional Trustee and the Holder
of the
Common Securities without the consent of the Holders of the Capital Securities
to:
(i)
cure
any
ambiguity;
(ii)
correct
or supplement any provision in this Declaration that may be defective
or
inconsistent with any other provision of this Declaration;
(iii)
add
to
the covenants, restrictions or obligations of the Sponsor; or
(iv)
modify,
eliminate or add to any provision of this Declaration to such extent
as may be
necessary or desirable, including, without limitation, to ensure that
the Trust
will be classified for United States federal income tax purposes at all
times as
a grantor trust and will not be required to register as an Investment
Company
under the Investment Company Act (including without limitation to conform
to any
change in Rule 3a-5, Rule 3a-7 or any other applicable rule under the
Investment
Company Act or written change in interpretation or application thereof
by any
legislative body, court, government agency or regulatory
authority);
provided
,
however
,
that no
such amendment contemplated in clause (i), (ii), (iii) or (iv)
shall
adversely affect the powers, preferences, rights or interests of Holders
of
Capital Securities.
Section
11.2.
Meetings
of the Holders of the Securities; Action by Written Consent
.
(a)
Meetings
of the Holders of the Capital Securities or the Common Securities may
be called
at any time by the Administrators (or as provided in the terms of such
Securities) to consider and act on any matter on which Holders of such
Securities are entitled to act under the terms of this Declaration, the
terms of
such Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, if any. The Administrators
shall
call a meeting of the Holders of such Securities if directed to do so
by the
Holders
of not less than 10% in liquidation amount of such Securities. Such
direction
shall be given by delivering to the Administrators one or more notices
in a
writing stating that the signing Holders of such Securities wish to
call a
meeting and indicating the general or specific purpose for which the
meeting is
to be called. Any Holders of Securities calling a meeting shall specify
in
writing the Certificates held by the Holders of the Securities exercising
the
right to call a meeting and only those Securities represented by such
Certificates shall be counted for purposes of determining whether the
required
percentage set forth in the second sentence of this paragraph has been
met.
(b)
Except
to
the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
(i)
Notice
of
any such meeting shall be given to all the Holders of the Securities
having a
right to vote thereat at least 7 days and not more than 60 days before
the date
of such meeting. Whenever a vote, consent or approval of the Holders
of the
Securities is permitted or required under this Declaration or the rules
of any
stock exchange on which the Capital Securities are listed or admitted
for
trading, if any, such vote, consent or approval may be given at a meeting
of the
Holders of the Securities. Any action that may be taken at a meeting
of the
Holders of the Securities may be taken without a meeting if a consent
in writing
setting forth the action so taken is signed by the Holders of the Securities
owning not less than the minimum liquidation amount of Securities that
would be
necessary to authorize or take such action at a meeting at which all
Holders of
the Securities having a right to vote thereon were present and voting.
Prompt
notice of the taking of action without a meeting shall be given to the
Holders
of the Securities entitled to vote who have not consented in writing.
The
Administrators may specify that any written ballot submitted to the Holders
of
the Securities for the purpose of taking any action without a meeting
shall be
returned to the Trust within the time specified by the
Administrators.
(ii)
Each
Holder of a Security may authorize any Person to act for it by proxy
on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting.
No proxy
shall be valid after the expiration of 11 months from the date thereof
unless
otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure
of the Holder of the Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of proxies
shall
be governed by the General Corporation Law of the State of Delaware relating
to
proxies, and judicial interpretations thereunder, as if the Trust were
a
Delaware corporation and the Holders of the Securities were stockholders
of a
Delaware corporation. Each meeting of the Holders of the Securities shall
be
conducted by the Administrators or by such other Person that the Administrators
may designate.
(iii)
Unless
the Statutory Trust Act, this Declaration, the terms of the Securities,
the
Trust Indenture Act or the listing rules of any stock exchange on which
the
Capital Securities are then listed or admitted for trading, if any,
otherwise
provides, the Administrators, in their sole discretion, shall establish
all
other provisions relating to meetings of Holders of Securities, including
notice
of the time, place or purpose of any meeting at which any matter is
to be voted
on by any Holders of the Securities, waiver of any such notice, action
by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to
the exercise of any such right to vote;
provided
,
however
,
that
each meeting shall be conducted in the United States (as that term
is defined in
Treasury Regulations § 301.7701-7).
ARTICLE
XII
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE
AND
DELAWARE TRUSTEE
Section
12.1.
Representations
and Warranties of Institutional Trustee
.
The
Trustee that acts as initial Institutional Trustee represents and warrants
to
the Trust and to the Sponsor at the date of this Declaration, and each
Successor
Institutional Trustee represents and warrants to the Trust and the Sponsor
at
the time of the Successor Institutional Trustee’s acceptance of its appointment
as Institutional Trustee, that:
(a)
the
Institutional Trustee is a banking corporation or national association
with
trust powers, duly organized, validly existing and in good standing under
the
laws of the State of Delaware or the United States of America, respectively,
with trust power and authority to execute and deliver, and to carry out
and
perform its obligations under the terms of, this Declaration;
(b)
the
Institutional Trustee has a combined capital and surplus of at least
fifty
million U.S. dollars ($50,000,000);
(c)
the
Institutional Trustee is not an Affiliate of the Sponsor, nor does the
Institutional Trustee offer or provide credit or credit enhancement to
the
Trust;
(d)
the
execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary action on the part
of the
Institutional Trustee, and this Declaration has been duly executed and
delivered
by the Institutional Trustee, and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject
to
applicable bankruptcy, reorganization, moratorium, insolvency and other
similar
laws affecting creditors’ rights generally and to general principles of equity
and the discretion of the court (regardless of whether considered in
a
proceeding in equity or at law);
(e)
the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter
or by-laws
of the Institutional Trustee; and
(f)
no
consent, approval or authorization of, or registration with or notice
to, any
state or federal banking authority governing the trust powers of the
Institutional Trustee is
required
for the execution, delivery or performance by the Institutional Trustee
of this
Declaration.
Section
12.2.
Representations
and Warranties of Delaware Trustee
.
The
Trustee that acts as initial Delaware Trustee represents and warrants
to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor
at the
time of the Successor Delaware Trustee’s acceptance of its appointment as
Delaware Trustee that:
(a)
if
it is
not a natural person, the Delaware Trustee is duly organized, validly
existing
and in good standing under the laws of the State of Delaware;
(b)
if
it is
not a natural person, the execution, delivery and performance by the
Delaware
Trustee of this Declaration has been duly authorized by all necessary
corporate
action on the part of the Delaware Trustee, and this Declaration has
been duly
executed and delivered by the Delaware Trustee, and under Delaware law
(excluding any securities laws) constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors’ rights generally and to
general principles of equity and the discretion of the court (regardless
of
whether considered in a proceeding in equity or at law);
(c)
if
it is
not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute
a
breach of the charter or by-laws of the Delaware Trustee;
(d)
it
has
trust power and authority to execute and deliver, and to carry out and
perform
its obligations under the terms of, this Declaration;
(e)
no
consent, approval or authorization of, or registration with or notice
to, any
state or federal banking authority governing the trust powers of the
Delaware
Trustee is required for the execution, delivery or performance by the
Delaware
Trustee of this Declaration; and
(f)
the
Delaware Trustee is a natural person who is a resident of the State of
Delaware
or, if not a natural person, it is an entity which has its principal
place of
business in the State of Delaware and, in either case, a Person that
satisfies
for the Trust the requirements of §3807 of the Statutory Trust Act.
ARTICLE
XIII
MISCELLANEOUS
Section
13.1.
Notices
.
All
notices provided for in this Declaration shall be in writing, duly signed
by the
party giving such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class mail)
or mailed
by first class mail, as follows:
(a)
if
given
to the Trust, in care of the Administrators at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to
the
Holders of the Securities): WT Capital Trust II, c/o Washington Trust
Bancorp,
Inc., 23 Broad Street, Westerly, Rhode Island 02891, Attention: David
V.
Devault, Telecopy: (401) 348-1565, Telephone: (401) 348-1319;
(b)
if
given
to the Delaware Trustee, at the mailing address set forth below (or such
other
address as the Delaware Trustee may give notice of to the Holders of
the
Securities): Wilmington Trust Company, Rodney Square North, 1100 North
Market
Street, Wilmington, DE 19890-0001, Attention:
Corporate
Capital Markets,
Telecopy:
302-636-4140, Telephone: 302-651-1000;
(c)
if
given
to the Institutional Trustee, at the Institutional Trustee’s mailing address set
forth below (or such other address as the Institutional Trustee may give
notice
of to the Holders of the Securities): Wilmington Trust Company, Rodney
Square
North, 1100 North Market Street, Wilmington, DE 19890-0001, Attention:
Corporate
Capital Markets,
Telecopy:
302-636-4140, Telephone: 302-651-1000;
(d)
if
given
to the Holder of the Common Securities, at the mailing address of the
Sponsor
set forth below (or such other address as the Holder of the Common Securities
may give notice of to the Trust): Washington Trust Bancorp, Inc., 23
Broad
Street, Westerly, Rhode Island 02891, Attention: David V. Devault, Telecopy:
(401) 348-1565, Telephone: (401) 348-1319; or
(e)
if
given
to any other Holder, at the address set forth on the books and records
of the
Trust.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid,
except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice
or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
Section
13.2.
Governing
Law
.
This
Declaration and the rights and obligations of the parties hereunder shall
be
governed by and interpreted in accordance with the law of the State of
Delaware
and all rights, obligations and remedies shall be governed by such laws
without
regard to the principles of conflict of laws of the State of Delaware
or any
other jurisdiction that would call for the application of the law of
any
jurisdiction other than the State of Delaware.
Section
13.3.
Submission
to Jurisdiction
.
(a)
Each
of
the parties hereto agrees that any suit, action or proceeding arising
out of or
based upon this Declaration, or the transactions contemplated hereby,
may be
instituted in any of the courts of the State of New York and the United
States
District Courts, in each case located in the Borough of Manhattan, City
and
State of New York, and further agrees to submit to the jurisdiction of
any
competent court in the place of its corporate domicile in
respect
of actions brought against it as a defendant. In addition, each such
party
irrevocably waives, to the fullest extent permitted by law, any objection
which
it may now or hereafter have to the laying of the venue of such suit,
action or
proceeding brought in any such court and irrevocably waives any claim
that any
such suit, action or proceeding brought in any such court has been
brought in an
inconvenient forum and irrevocably waives any right to which it may
be entitled
on account of its place of corporate domicile. Each such party hereby
irrevocably waives any and all right to trial by jury in any legal
proceeding
arising out of or relating to this Declaration or the transactions
contemplated
hereby. Each such party agrees that final judgment in any proceedings
brought in
such a court shall be conclusive and binding upon it and may be enforced
in any
court to the jurisdiction of which it is subject by a suit upon such
judgment.
(b)
Each
of
the Sponsor, the Trustees, the Administrators and the Holder of the Common
Securities irrevocably consents to the service of process on it in any
such
suit, action or proceeding by the mailing thereof by registered or certified
mail, postage prepaid, to it at its address given in or pursuant to Section
13.1
hereof.
(c)
To
the
extent permitted by law, nothing herein contained shall preclude any
party from
effecting service of process in any lawful manner or from bringing any
suit,
action or proceeding in respect of this Declaration in any other state,
country
or place.
Section
13.4.
Intention
of the Parties
.
It is
the intention of the parties hereto that the Trust be classified for
United
States federal income tax purposes as a grantor trust. The provisions
of this
Declaration shall be interpreted to further this intention of the
parties.
Section
13.5.
Headings
.
Headings contained in this Declaration are inserted for convenience of
reference
only and do not affect the interpretation of this Declaration or any
provision
hereof.
Section
13.6.
Successors
and Assigns
.
Whenever in this Declaration any of the parties hereto is named or referred
to,
the successors and assigns of such party shall be deemed to be included,
and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and
assigns,
whether or not so expressed.
Section
13.7.
Partial
Enforceability
.
If any
provision of this Declaration, or the application of such provision to
any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
Section
13.8.
Counterparts
.
This
Declaration may contain more than one counterpart of the signature page
and this
Declaration may be executed by the affixing of the signature of each
of the
Trustees and Administrators to any 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.
IN
WITNESS WHEREOF, the undersigned have caused this Declaration to be duly
executed as of the day and year first above written.
WILMINGTON
TRUST COMPANY
,
as
Delaware Trustee
By:
/s/
Geoffrey J.
Lewis
Name:
Geoffrey J. Lewis
Title:
Financial Service Officer
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee
By:
/s/
Geoffrey J.
Lewis
Name:
Geoffrey J. Lewis
Title:
Financial Service Officer
Washington
Trust Bancorp, Inc.
as
Sponsor
By:
/s/
John C.
Warren
Name:
John C. Warren
Title:
Chairman and CEO
/s/
John C. Warren
_________________
John
C.
Warren
as
Administrator
/s/
John F. Treanor
________________
John
F.
Treanor
as
Administrator
/s/
David V. Devault
_______________
David
V.
Devault
as
Administrator
ANNEX
I
TERMS
OF
CAPITAL
SECURITIES
AND
COMMON SECURITIES
Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of
August 29, 2005 (as amended from time to time, the “Declaration”), the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities and the Common Securities (collectively,
the “Securities”) are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration):
1.
Designation
and Number.
(a)
Capital
Securities. 14,000 Capital Securities of WT Capital Trust II (the “Trust”), with
an aggregate liquidation amount with respect to the assets of the Trust of
FOURTEEN MILLION Dollars ($14,000,000) and a liquidation amount with respect
to
the assets of the Trust of $1,000 per Capital Security, are hereby designated
for the purposes of identification only as the “MMCapS
SM
”
(the
“Capital Securities”). The Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of
any
stock exchange on which the Capital Securities are listed, if any.
(b)
Common
Securities. 433 Common Securities of the Trust (the “Common Securities”) will be
evidenced by Common Security Certificates substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. In the
absence of an Event of Default, the Common Securities will have an aggregate
liquidation amount with respect to the assets of the Trust of FOUR HUNDRED
THIRTY-THREE THOUSAND Dollars ($433,000) and a liquidation amount with respect
to the assets of the Trust of $1,000 per Common Security.
2.
Distributions
.
(a)
Distributions on each Security will be payable at a per annum rate (the “Coupon
Rate”) equal to (i) with respect to any Distribution Period (as defined herein)
prior to the Distribution Period commencing on the Distribution Period
commencing on the Distribution Payment Date (as defined herein) in
November, 2010, 5.96% and (ii) with respect to any Distribution Period
commencing on or after the Distribution Payment Date in November, 2010,
LIBOR, as determined on the LIBOR Determination Date for such Distribution
Period, plus 1.45%;
provided
,
however
,
that
the Coupon Rate for any Distribution Period commencing on or after the
Distribution Payment Date in November, 2010, may not exceed the Interest
Rate (as defined in the Indenture) for the related Interest Period (as defined
in the Indenture). Distributions in arrears for more than one Distribution
Period will bear interest thereon, compounded quarterly, at the applicable
Coupon Rate for each Distribution Period thereafter (to the extent permitted
by
applicable law). The term “Distributions”, as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has funds
legally available in the Property Account therefor. The
amount
of
Distributions payable will be computed (i) with respect to any Distribution
Period prior to the Distribution Period commencing on the Distribution Payment
Date in November, 2010, on the basis of a 360-day year consisting
of twelve
30-day months and (ii) with respect to any Distribution Period commencing
on or
after the Distribution Payment Date in November, 2010, on the basis
of a
360-day year and the actual number of days elapsed in such Distribution
Period.
The
term
“Distribution Period”, as used herein, means (i) in the case of the first
Distribution Period, the period from, and including, the date of original
issuance of the Securities to, but excluding, the initial Distribution Payment
Date and (ii) thereafter, from, and including, the first day following the
end
of the preceding Distribution Period to, but excluding, the applicable
Distribution Payment Date or, in the case of the last Distribution Period,
the
related date of redemption.
(b)
LIBOR
shall be determined by the Calculation Agent for each Distribution Period
commencing on or after the Distribution Payment Date in November, 2010
in
accordance with the following provisions:
(1)
On
the
second LIBOR Business Day (provided, that on such day commercial banks are
open
for business (including dealings in foreign currency deposits) in London (a
“LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Day that
is also a LIBOR Banking Day) prior to the Distribution Payment Date that
commences such Distribution Period (each such day, a “LIBOR Determination
Date”), LIBOR shall equal the rate, as obtained by the Calculation Agent, for
three-month U.S. Dollar deposits in Europe, which appears on Telerate (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions) page 3750 or such other page
as
may replace such page 3750, as of 11:00 a.m. (London time) on such LIBOR
Determination Date, as reported by Bloomberg Financial Markets Commodities
News
or any successor service (“Telerate Page 3750”). “LIBOR Business Day” means any
day that is not a Saturday, Sunday or other day on which commercial banking
institutions in The City of New York or Wilmington, Delaware are authorized
or
obligated by law or executive order to be closed. If such rate is superseded
on
Telerate Page 3750 by a corrected rate before 12:00 noon (London time) on such
LIBOR Determination Date, the corrected rate as so substituted will be LIBOR
for
such LIBOR Determination Date.
(2)
If,
on
such LIBOR Determination Date, such rate does not appear on Telerate Page 3750,
the Calculation Agent shall determine the arithmetic mean of the offered
quotations of the Reference Banks (as defined below) to leading banks in the
London interbank market for three-month U.S. Dollar deposits in Europe (in
an
amount determined by the Calculation Agent) by reference to requests for
quotations as of approximately 11:00 a.m. (London time) on such LIBOR
Determination Date made by the Calculation Agent to the Reference Banks. If,
on
such LIBOR Determination Date, at least two of the Reference Banks provide
such
quotations, LIBOR shall equal the arithmetic mean of such quotations. If, on
such LIBOR Determination Date, only one or none of the
Reference
Banks provide such a quotation, LIBOR shall be deemed to be the arithmetic
mean
of the offered quotations that at least two leading banks in The City of
New
York (as selected by the Calculation Agent) are quoting on such LIBOR
Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an amount determined by the
Calculation Agent). As used herein, “Reference Banks” means four major banks in
the London interbank market selected by the Calculation
Agent.
(3)
If
the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for such Distribution
Period shall be LIBOR in effect for the immediately preceding Distribution
Period.
(c)
All
percentages resulting from any calculations on the Securities will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
(d)
On
each
LIBOR Determination Date, the Calculation Agent shall notify, in writing, the
Sponsor and the Paying Agent of the applicable Coupon Rate that applies to
the
related Distribution Period. The Calculation Agent shall, upon the request
of a
Holder of any Securities, inform such Holder of the Coupon Rate that applies
to
the related Distribution Period. All calculations made by the Calculation Agent
in the absence of manifest error shall be conclusive for all purposes and
binding on the Sponsor and the Holders of the Securities. The Paying Agent
shall
be entitled to rely on information received from the Calculation Agent or the
Sponsor as to the applicable Coupon Rate. The Sponsor shall, from time to time,
provide any necessary information to the Paying Agent relating to any original
issue discount and interest on the Securities that is included in any payment
and reportable for taxable income calculation purposes.
(e)
Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of Distribution Periods
as
described herein, quarterly in arrears on February 23, May 23, August 23 and
November 23 of each year, commencing on November 23, 2005 (each, a “Distribution
Payment Date”), and on any earlier date of redemption, as applicable. The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period for up to 20
consecutive quarterly periods (each such extended interest payment period,
together with all previous and future consecutive extensions thereof, is
referred to herein as an “Extension Period”) at any time and from time to time
on the Debentures, subject to the conditions described below and in the
Indenture. No Extension Period may end on a date other than a Distribution
Payment Date or extend beyond the Maturity Date, any Optional Redemption Date
or
the Special Redemption Date, as the case may be (each such term as defined
herein). During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest (such accrued interest and
interest thereon referred to herein as “Deferred Interest”) will accrue, at an
annual rate equal to the Coupon Rate applicable during such Extension Period,
compounded quarterly from the date such Deferred Interest would have been
payable
were it not for the Extension Period, to the extent permitted by applicable
law.
At the end of any Extension Period, the Debenture Issuer shall pay all Deferred
Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that
during any Extension Period, the Debenture Issuer may not (i) declare or
pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Debenture Issuer’s capital
stock, (ii) make any payment of principal or premium or interest on or repay,
repurchase or redeem any debt securities of the Debenture Issuer that rank
in
all respects
pari
passu
with or
junior in interest to the Debentures or (iii) make any payment under any
guarantees of the Debenture Issuer that rank in all respects
pari
passu
with or
junior in interest to the Guarantee (other than (a) repurchases, redemptions
or
other acquisitions of shares of capital stock of the Debenture Issuer (A)
in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment
or
stockholder stock purchase plan or (C) in connection with the issuance of
capital stock of the Debenture Issuer (or securities convertible into or
exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as
a
result of any exchange or conversion of any class or series of the Debenture
Issuer’s capital stock (or any capital stock of a subsidiary of the Debenture
Issuer) for any class or series of the Debenture Issuer’s capital stock or of
any class or series of the Debenture Issuer’s indebtedness for any class or
series of the Debenture Issuer’s capital stock, (c) the purchase of fractional
interests in shares of the Debenture Issuer’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with
any
stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that
on
which the dividend is being paid or ranks
pari
passu
with or
junior in interest to such stock). Prior to the termination of any Extension
Period, the Debenture Issuer may further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the Debenture Issuer may commence a new Extension
Period,
subject to the requirements herein and in the Indenture.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at the
end
thereof, but Deferred Interest shall accrue upon each installment of interest
that would otherwise have been due and payable during such Extension Period
until such installment is paid.
As
a
consequence of any Extension Period, Distributions will be deferred.
Notwithstanding any such deferral, Distributions will continue to accrue on
the
Securities, and Distributions on such accrued Distributions will accrue, at
the
Coupon Rate applicable during such Extension Period, compounded quarterly,
to
the extent permitted by applicable law. If Distributions are deferred, the
Distributions due shall be paid on the date that such Extension Period
terminates to Holders of the Securities as they appear on the books and records
of the Trust on the regular record date immediately preceding the Distribution
Payment Date on which
such
Extension Period terminates to the extent that the Trust has funds legally
available for the payment of such Distributions in the Property Account of
the
Trust.
The
Trust’s funds available for Distributions to the Holders of the Securities will
be limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Guarantee.
(f)
Distributions
on the Securities on any Distribution Payment Date will be payable to the
Holders thereof as they appear on the books and records of the Registrar on
the
relevant regular record dates. The relevant “regular record dates” shall be 15
days before the relevant Distribution Payment Dates. Distributions payable
on
any Securities that are not punctually paid on any Distribution Payment Date,
as
a result of the Debenture Issuer having failed to make a payment under the
Debentures, as the case may be, when due (taking into account any Extension
Period), will cease to be payable to the Person in whose name such Securities
are registered on the original relevant regular record date, and such defaulted
Distributions will instead be payable to the Person in whose name such
Securities are registered on the regular record date preceding the Distribution
Payment Date on which the related Extension Period terminates or, in the absence
of an Extension Period, a special record date therefor selected by the
Administrators.
(g)
In
the
event that there is any money or other property held by or for the Trust that
is
not accounted for hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
(h)
If
any
Distribution Payment Date on or prior to the Distribution Payment Date in
November, 2010 falls on a day that is not a Business Day, then
Distributions payable on such date will be paid on the next succeeding Business
Day, and no additional Distributions will accrue in respect of such payment
on
such next Business Day. If any Distribution Payment Date after the Distribution
Payment Date in November, 2010, other than any date of redemption falls
on
a day that is not a Business Day, then Distributions payable will be paid on,
and such Distribution Payment Date will be moved to, the next succeeding
Business Day, and additional Distributions will accrue for each day that such
payment is delayed as a result thereof.
3.
Liquidation
Distribution Upon Dissolution
.
In the
event of the voluntary or involuntary liquidation, dissolution, winding-up
or
termination of the Trust (each, a “Liquidation”), the Holders of the Securities
will be entitled to receive out of the assets of the Trust legally available
for
distribution to Holders of the Securities, after satisfaction of liabilities
to
creditors of the Trust (to the extent not satisfied by the Debenture Issuer),
an
amount in cash equal to the aggregate of the liquidation amount of $1,000 per
Security plus unpaid Distributions accrued thereon to the date of payment
(collectively, the “Liquidation Distribution”), unless: (i) the Debentures have
been redeemed in full in accordance with the terms thereof and of the Indenture;
or (ii) the Debentures in an aggregate principal amount equal to the aggregate
liquidation amount of such Securities and bearing accrued and unpaid interest
in
an amount equal to the accrued and unpaid Distributions on such Securities,
after paying or making reasonable provision to pay all claims and obligations
of
the Trust in accordance with Section 3808(e) of the Statutory Trust Act, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
The
Sponsor, as the Holder of all of the Common Securities, has the right at any
time, upon receipt by the Debenture Issuer and the Institutional Trustee for
the
benefit of the Trust of (i) an opinion of nationally recognized tax
counsel
that Holders will not recognize any gain or loss for United States Federal
income tax purposes as a result of the distribution of Debentures, to dissolve
the Trust (including, without limitation, upon the occurrence of a Tax Event,
an
Investment Company Event or a Capital Treatment Event, each as defined herein)
and (ii) prior approval from the Board of Governors of the Federal Reserve
System (the “Federal Reserve”) (if then required under applicable capital
guidelines or policies of the Federal Reserve) and, after satisfaction of
liabilities to creditors of the Trust, cause the Debentures to be distributed
to
the Holders of the Securities on a Pro Rata basis in accordance with the
aggregate liquidation amount thereof.
The
Trust
shall dissolve on the first to occur of (i) November 23, 2040, the expiration
of
the term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor,
the
Trust or the Debenture Issuer, (iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the Indenture, this
Declaration or the Guarantee, as the case may be) the filing of a certificate
of
dissolution or its equivalent with respect to the Sponsor or upon the revocation
of the charter of the Sponsor and the expiration of 90 days after the date
of
revocation without a reinstatement thereof, (iv) the distribution of all of
the
Debentures to the Holders of the Securities, upon exercise of the right of
the
Holders of all of the outstanding Common Securities to dissolve the Trust as
described above, (v) the entry of a decree of a judicial dissolution of any
Holder of the Common Securities, the Sponsor, the Trust or the Debenture Issuer,
(vi) when all of the Securities are then subject to redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities or (vii) before the issuance of
any
Securities, with the consent of all of the Trustees and the Sponsor. As soon
as
practicable after the dissolution of the Trust and upon completion of the
winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation with the Secretary of State of the State of
Delaware.
Notwithstanding
the foregoing, if a Liquidation of the Trust occurs as described in clause
(i),
(ii), (iii) or (v) in the immediately preceding paragraph, the Trust shall
be
liquidated by the Institutional Trustee of the Trust as expeditiously as such
Trustee determines to be practical by distributing, after satisfaction of
liabilities to creditors of the Trust (to the extent not satisfied by the
Debenture Issuer) as provided by applicable law, to the Holders of the
Securities, the Debentures on a Pro Rata basis, unless such distribution is
determined by the Institutional Trustee not to be practical, in which event
such
Holders will be entitled to receive on a Pro Rata basis, out of the assets
of
the Trust legally available for distribution to the Holders of the Securities,
after satisfaction of liabilities to creditors of the Trust (to the extent
not
satisfied by the Debenture Issuer), an amount in cash equal to the Liquidation
Distribution. A Liquidation of the Trust pursuant to clause (iv) of
the
immediately preceding paragraph shall occur if the Institutional Trustee
determines that such Liquidation is practical by distributing, after
satisfaction of liabilities to creditors of the Trust (to the extent not
satisfied by the Debenture Issuer), to the Holders of the Securities on a Pro
Rata basis, the Debentures, and such distribution occurs.
If,
upon
any Liquidation of the Trust, the Liquidation Distribution can be paid only
in
part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid to the Holders of the Securities on a
Pro
Rata basis, except that if an Event of Default has occurred and is continuing,
then the Capital Securities shall have a preference over the Common Securities
with regard to such amounts.
Upon
any
Liquidation of the Trust involving a distribution of the Debentures, if at
the
time of such Liquidation, the Capital Securities were rated by at least one
nationally-recognized statistical rating organization, the Debenture Issuer
will
use its reasonable best efforts to obtain from at least one such or other rating
organization a rating for the Debentures.
After
the
date for any distribution of the Debentures upon any Liquidation of the Trust,
(i) the Securities of the Trust will be deemed to be no longer outstanding,
(ii)
any certificates representing the Capital Securities will be deemed to represent
undivided beneficial interests in such of the Debentures as have an aggregate
principal amount equal to the aggregate liquidation amount of such Capital
Securities and bearing accrued and unpaid interest equal to accrued and unpaid
Distributions on such Capital Securities until such certificates are presented
to the Debenture Issuer or its agent for transfer or reissuance (and until
such
certificates are so surrendered, no payments shall be made to Holders of
Securities in respect of any payments due and payable under the Debentures)
and
(iii) all rights of Holders of Securities shall cease, except the right of
such
Holders to receive Debentures upon surrender of certificates representing such
Securities.
4.
Redemption
and Distribution
.
(a)
The
Debentures will mature on November 23, 2035 (the “Maturity Date”) at an amount
in cash equal to 100% of the principal amount thereof plus unpaid interest
accrued thereon to such date (the “Maturity Redemption Price”). The Debentures
may be redeemed by the Debenture Issuer, at its option, in whole or in part,
on
any Distribution Payment Date on or after November 23, 2010 (each, an “Optional
Redemption Date”), at the Optional Redemption Price, upon not less than 30 nor
more than 60 days’ prior written notice to holders of such Debentures. In
addition, upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event, the Debentures may be redeemed
by
the Debenture Issuer, at its option, in whole but not in part, at any time
within 90 days following the occurrence of such Tax Event, Investment Company
Event or Capital Treatment Event, as the case may be (the “Special Redemption
Date”), at the Special Redemption Price, upon not less than 30 nor more than 60
days’ prior written notice to holders of the Debentures so long as such Tax
Event, Investment Company Event or Capital Treatment Event, as the case may
be,
is continuing. In each case, the right of the Debenture Issuer to redeem the
Debentures prior to maturity is subject to the Debenture Issuer and the Trust
having received prior approval from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve.
“Tax
Event” means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the
laws
or any regulations
thereunder
of the United States or any political subdivision or taxing authority thereof
or
therein, or as a result of any official administrative pronouncement (including
any private letter ruling, technical advice memorandum, regulatory procedure,
notice or announcement) (an “Administrative Action”) or judicial decision
interpreting or applying such laws or regulations, regardless of whether
such
Administrative Action or judicial decision is issued to or in connection
with a
proceeding involving the Debenture Issuer or the Trust and whether or not
subject to review or appeal, which amendment, clarification, change,
Administrative Action or decision is enacted, promulgated or announced, in
each
case on or after the date of original issuance of the Debentures, there is
more
than an insubstantial risk that: (i) the Trust is, or will be within 90 days
of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Debentures; (ii) if the Debenture
Issuer is organized and existing under the laws of the United States or any
state thereof or the District of Columbia, interest payable by the Debenture
Issuer on the Debentures is not, or within 90 days of the date of such opinion,
will not be, deductible by the Debenture Issuer, in whole or in part, for
United
States federal income tax purposes; or (iii) the Trust is, or will be within
90
days of the date of such opinion, subject to or otherwise required to pay,
or
required to withhold from Distributions, more than a de minimis amount of
other
taxes (including withholding taxes), duties, assessments or other governmental
charges.
“Investment
Company Event” means the receipt by the Debenture Issuer and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of a change in law or regulation or written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or, within 90 days of the date of such opinion will be, considered
an Investment Company that is required to be registered under the Investment
Company Act, which change becomes effective on or after the date of the original
issuance of the Debentures.
“Capital
Treatment Event” means, if the Debenture Issuer is organized and existing under
the laws of the United States or any state thereof or the District of Columbia,
the receipt by the Debenture Issuer and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to,
or change in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or as the result of any official
or
administrative pronouncement or action or decision interpreting or applying
such
laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the date of original
issuance of the Debentures, there is more than an insubstantial risk that the
Debenture Issuer will not, within 90 days of the date of such opinion, be
entitled to treat Capital Securities as “Tier 1 Capital” (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of the Federal Reserve
(or any successor regulatory authority with jurisdiction over bank holding
companies), as then in effect and applicable to the Debenture Issuer; provided,
however, that the inability of the Debenture Issuer to treat all or any portion
of the aggregate Liquidation Amount of the Capital Securities as “Tier 1
Capital” shall not constitute the basis for a Capital Treatment Event if such
inability results from the Debenture Issuer having preferred stock, minority
interests in consolidated subsidiaries and any other class of security or
interest which the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies) may now or hereafter accord “Tier 1
Capital”
treatment that, in the aggregate, exceed the amount which may now or hereafter
qualify for treatment as “Tier 1 Capital” under applicable capital adequacy
guidelines of the Federal Reserve (or any successor regulatory authority
with
jurisdiction over bank holding companies); provided, further, however, that
the
distribution of the Debentures in connection with the Liquidation of the
Trust
by the Debenture Issuer shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in connection
with a
Tax Event or an Investment Company Event. For the avoidance of doubt, the
inability of the Debenture Issuer to treat all or any portion of the aggregate
Liquidation Amount of the Capital Securities as “Tier 1 Capital” as a result of
the changes effected by the final rule adopted by the Federal Reserve on
March
1, 2005 shall not constitute the basis for a Capital Treatment
Event.
“Optional
Redemption Price”
means
an
amount in cash equal to 100% of the principal amount of the Debentures being
redeemed
plus
unpaid interest accrued on such Debentures to the related Optional Redemption
Date.
“Special
Event” means any of a Tax Event, an Investment Company Event or a Capital
Treatment Event.
“Special
Redemption Price” means, with respect to the redemption of the Debentures
following a Special Event, an amount in cash equal to 104.00% of the principal
amount of Debentures to be redeemed prior to November 23, 2006 and thereafter
equal to the percentage of the principal amount of the Debentures that is
specified below for the Special Redemption Date plus, in each case, unpaid
interest accrued thereon to the Special Redemption Date:
|
Special
Redemption During the 12-Month
Period
Beginning November 23,
|
Percentage
of Principal Amount
|
|
2006
|
103.20%
|
|
2007
|
102.40%
|
|
2008
|
101.60%
|
|
2009
|
100.80%
|
|
2010
and thereafter
|
100.00%
|
(b)
Upon
any
repayment of the Debentures at maturity or in whole or in part upon redemption
(other than following the distribution of the Debentures to the Holders of
the
Securities), the proceeds from such repayment shall concurrently be applied
to
redeem Pro Rata, at a redemption price corresponding to the applicable Maturity
Redemption Price, Optional Redemption Price or Special Redemption Price for
the
Debentures, as the case may be, Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid;
provided
,
however
,
that
Holders of such Securities shall be given not less
than
30
nor more than 60 days’ prior written notice of such redemption (other than a
redemption resulting from the maturity of the Debentures on the Maturity
Date).
(c)
If
fewer
than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be as described in Section 4(e)(ii) below.
(d)
The
Trust
may not redeem fewer than all the outstanding Capital Securities unless all
accrued and unpaid Distributions have been paid on all Capital Securities for
all Distribution Periods terminating on or before the related date of
redemption.
(e)
Redemption
or Distribution Procedures.
(i)
Written
notice of any redemption of, or written notice of distribution of the Debentures
in exchange for, the Securities (a “Redemption/Distribution Notice”) will be
given by the Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date of redemption
or exchange thereof which, in the case of a redemption, will be the date of
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this
Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to be given
on
the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of such Securities at the address of each such Holder
appearing on the books and records of the Registrar. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings
with
respect to any other Holder.
(ii)
In
the
event that fewer than all the outstanding Capital Securities are to be redeemed,
the Capital Securities to be redeemed shall be redeemed Pro Rata from each
Holder.
(iii)
If
the
Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Debentures are redeemed or repaid
as set out in this Section (which notice will be irrevocable), then,
provided
,
that
the Institutional Trustee has a sufficient amount of cash in connection with
the
related redemption or maturity of the Debentures, the Institutional Trustee
will, with respect to Book-Entry Capital Securities, irrevocably deposit with
the Depositary for such Book-Entry Capital Securities, the price payable upon
redemption of the Securities, and will give such Depositary irrevocable
instructions and authority to pay the price payable upon redemption of such
Book-Entry Capital Securities to Beneficial Owners of the Capital Securities.
With respect to Capital Securities that are not Book-Entry Capital Securities,
the Institutional Trustee will pay the price payable upon redemption of such
Securities to the Holders of such Securities by check mailed to the address
of
each such Holder appearing on the books and records of the Trust on the related
date of redemption. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, then immediately prior to the close of business
on the date of such deposit,
Distributions
will cease to accrue on the Securities so subject to redemption and all rights
of Holders of such Securities so subject to redemption will cease, except
the
right of the Holders of such Securities to receive the applicable price
specified in Section 4(a), but without interest on such price. If any date
of
redemption of the Securities falls on a day that is not a Business Day, then
payment of all amounts payable on such date will be made on the next succeeding
Business Day, and no additional Distributions will accrue in respect of such
payment on such next succeeding Business Day. If any amount payable upon
redemption of the Securities is improperly withheld or refused and not paid
either by the Trust, the Debenture Issuer or the Sponsor as guarantor pursuant
to the Guarantee, Distributions on such Securities will continue to accrue
at
the Coupon Rate applicable from the date of redemption to the actual date
of
payment, in which case the actual payment date will be considered the date
of
redemption for purposes of calculating the price payable upon redemption
of the
Securities. In the event of any redemption of the Capital Securities issued
by
the Trust in part, the Trust shall not be required to (i) issue, register
the
transfer of or exchange any Security during a period beginning at the opening
of
business 15 days before any selection for redemption of the Capital Securities
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the Capital
Securities to be so redeemed or (ii) register the transfer of or exchange
any
Capital Securities so selected for redemption, in whole or in part, except
for
the unredeemed portion of any Capital Securities being redeemed in
part.
(iv)
Redemption/Distribution
Notices shall be sent by the Administrators on behalf of the Trust (A) in
respect of the Capital Securities, to the Holders thereof, and (B) in respect
of
the Common Securities, to the Holder thereof.
(v)
Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and
provided
,
that
the acquiror is not the Holder of the Common Securities or the obligor under
the
Indenture, the Sponsor or any of its subsidiaries may at any time and from
time
to time purchase outstanding Capital Securities by tender, in the open market
or
by private agreement.
5.
Voting
Rights - Capital Securities
.
(a)
Except as provided under Sections 5(b) and 7 and as otherwise required by law
and the Declaration, the Holders of the Capital Securities will have no voting
rights. The Administrators are required to call a meeting of the Holders of
the
Capital Securities if directed to do so by Holders of not less than 10% in
liquidation amount of the Capital Securities.
(b)
Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee
in
certain circumstances set forth in the last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Capital Securities, voting
separately as a class, have the right to direct the time, method, and place
of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including (i) directing the time, method, place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waiving any past default and its consequences that are waivable
under the Indenture, (iii) exercising
any
right
to rescind or annul an acceleration of the principal of all the Debentures
or
(iv) consenting on behalf of all the Holders of the Capital Securities to
any
amendment, modification or termination of the Indenture or the Debentures
where
such consent shall be required;
provided
,
however
,
that,
where a consent or action under the Indenture would require the consent or
act
of the holders of greater than a simple majority in principal amount of
Debentures (a “Super Majority”) affected thereby, the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of not less than the proportion in liquidation amount of the Capital
Securities outstanding which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. If the Institutional
Trustee fails to enforce its rights under the Debentures after the Holders
of a
Majority or Super Majority, as the case may be, in liquidation amount of
such
Capital Securities have so directed the Institutional Trustee, to the fullest
extent permitted by law, a Holder of the Capital Securities may institute
a
legal proceeding directly against the Debenture Issuer to enforce the
Institutional Trustee’s rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person
or
entity. Notwithstanding the foregoing, if an Event of Default has occurred
and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or premium, if any, on or principal of the Debentures
on
the date such interest, premium, if any, or principal is payable (or in the
case
of redemption, the date of redemption), then a Holder of the Capital Securities
may directly institute a proceeding for enforcement of payment, on or after
the
respective due dates specified in the Debentures, to such Holder directly
of the
principal of or premium, if any, or interest on the Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Securities of such Holder. The Institutional Trustee shall notify
all
Holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Debentures unless (x) such default
has
been cured prior to the giving of such notice or (y) the Institutional Trustee
determines in good faith that the withholding of such notice is in the interest
of the Holders of such Capital Securities, except where the default relates
to
the payment of principal of or interest on any of the Debentures. Such notice
shall state that such Indenture Event of Default also constitutes an Event
of
Default hereunder. Except with respect to directing the time, method and
place
of conducting a proceeding for a remedy, the Institutional Trustee shall
not
take any of the actions described in clause (i), (ii), (iii) or (iv) above
unless the Institutional Trustee has obtained an opinion of tax counsel to
the
effect that, as a result of such action, the Trust will not be classified
as
other than a grantor trust for United States federal income tax
purposes.
A
waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders of
the
Capital Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders of
the
Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of the
Capital Securities. Each such notice will include a statement setting forth
the
following information (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the Holders of the
Capital Securities will be required for
the
Trust
to redeem and cancel Capital Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the
Securities.
Notwithstanding
that Holders of the Capital Securities are entitled to vote or consent under
any
of the circumstances described above, any of the Capital Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the
Holder thereof to vote or consent and shall, for purposes of such vote or
consent, be treated as if such Capital Securities were not
outstanding.
In
no
event will Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the Trust.
Under
certain circumstances as more fully described in the Declaration, Holders of
Capital Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee.
6.
Voting
Rights - Common Securities
.
(a)
Except as provided under Sections 6(b), 6(c) and 7 and as otherwise required
by
law and the Declaration, the Common Securities will have no voting
rights.
(b)
The
Holder of the Common Securities is entitled, in accordance with Article IV
of
the Declaration, to vote to appoint, remove or replace any
Administrators.
(c)
Subject
to Section 6.7 of the Declaration and only after each Event of Default (if
any)
with respect to the Capital Securities has been cured, waived or otherwise
eliminated and subject to the requirements of the second to last sentence of
this paragraph, the Holder of the Common Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding
for
any remedy available to the Institutional Trustee, or exercising any trust
or
power conferred upon the Institutional Trustee under the Declaration, including
(i) directing the time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waiving
any past default and its consequences that are waivable under the Indenture,
or
(iii) exercising any right to rescind or annul an acceleration of the principal
of all the Debentures. Notwithstanding this Section 6(c), the Institutional
Trustee shall not revoke any action previously authorized or approved by a
vote
or consent of the Holders of the Capital Securities. Other than with respect
to
directing the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action described in clause
(i), (ii) or (iii) above, unless the Institutional Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Institutional Trustee fails to enforce
its rights under the Declaration, to the fullest extent permitted by law, the
Holder of the Common Securities may institute a legal proceeding directly
against any Person to enforce the Institutional Trustee’s rights under the
Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any
approval or direction of the Holder of the Common Securities may be given at
a
separate meeting of Holders of the Common Securities convened for such purpose,
at a
meeting
of all of the Holders of the Securities in the Trust or pursuant to written
consent. The Administrators will cause a notice of any meeting at which the
Holder of the Common Securities is entitled to vote, or of any matter upon
which
action by written consent of such Holder is to be taken, to be mailed to
the
Holder of the Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action
is
to be taken, (ii) a description of any resolution proposed for adoption at
such
meeting on which such Holder is entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies
or
consents.
No
vote
or consent of the Holder of the Common Securities will be required for the
Trust
to redeem and cancel Common Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
7.
Amendments
to Declaration and Indenture
.
In
addition to any requirements under Section 11.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment
to
the Declaration or otherwise, or (ii) the Liquidation of the Trust, other than
as described in Section 7.1 of the Declaration, then the Holders of outstanding
Securities, voting together as a single class, will be entitled to vote on
such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of a Majority in liquidation amount
of
the Securities affected thereby;
provided
,
however
,
if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or only the Common Securities, then only Holders
of
the affected Securities 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 a Majority in liquidation amount of such
Securities.
(a)
In
the
event the consent of the Institutional Trustee, as the holder of the Debentures,
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect
to
such amendment, modification or termination and shall vote with respect to
such
amendment, modification, or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class;
provided
,
however
,
that
where a consent under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent at the written direction of
the
Holders of not less than the proportion in liquidation amount of the Securities
which the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding.
(b)
Notwithstanding
the foregoing, no amendment or modification may be made to the Declaration
if
such amendment or modification would (i) cause the Trust to be classified for
purposes of United States federal income taxation as other than a grantor trust,
(ii) reduce or otherwise adversely affect the powers of the Institutional
Trustee or (iii) cause the Trust to be deemed an Investment Company which is
required to be registered under the Investment Company Act.
(c)
Notwithstanding
any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of Distributions and payments upon redemption,
Liquidation or otherwise, on or after their respective due dates, or to
institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such
Holder. For the protection and enforcement of the foregoing provision, each
and
every Holder of the Capital Securities shall be entitled to such relief as
can
be given either at law or equity.
8.
Pro
Rata
.
A
reference in these terms of the Securities to any payment, distribution or
treatment as being “Pro Rata” shall mean pro rata to each Holder of the
Securities according to the aggregate liquidation amount of the Securities
held
by the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Capital Securities Pro Rata
according to the aggregate liquidation amount of the Capital Securities held
by
the relevant Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all amounts owed to
the
Holders of the Capital Securities, to each Holder of the Common Securities
Pro
Rata according to the aggregate liquidation amount of the Common Securities
held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
9.
Ranking
.
The
Capital Securities rank
pari
passu
with,
and payment thereon shall be made Pro Rata with, the Common Securities except
that, where an Event of Default has occurred and is continuing, the rights
of
Holders of the Common Securities to receive payment of Distributions and
payments upon Liquidation, redemption and otherwise are subordinated to the
rights of the Holders of the Capital Securities with the result that no payment
of any Distribution on, or any amount payable upon the redemption of, any Common
Security, and no payment to the Holder of any Common Security on account of
the
Liquidation of the Trust, shall be made unless payment in full in cash of (i)
all accrued and unpaid Distributions on all outstanding Capital Securities
for
all Distribution Periods terminating on or prior thereto, (ii) all amounts
payable upon Capital Securities then subject to redemption and (iii) all amounts
payable upon Capital Securities in the event of the Liquidation of the Trust,
in
each case, shall have been made or provided for, and all funds immediately
available to the Institutional Trustee shall first be applied to the payment
in
full in cash of the amounts specified in clause (i), (ii) and (iii) above that
are then due and payable.
10.
Acceptance
of Guarantee and Indenture
.
Each
Holder of the Capital Securities and the Common Securities, by the acceptance
of
such Securities, agrees to the provisions of the Guarantee and the Indenture,
including the subordination provisions therein.
11.
No
Preemptive Rights
.
The
Holders of the Securities shall have no, and the issuance of the Securities
is
not subject to, preemptive or similar rights to subscribe for any additional
securities.
12.
Miscellaneous
.
These
terms constitute a part of the Declaration. The Sponsor will provide a copy
of
the Declaration, the Guarantee and the Indenture to a Holder without charge
on
written request to the Sponsor at its principal place of
business.
EXHIBIT
A-1
FORM
OF CAPITAL SECURITY CERTIFICATE
[FORM
OF
FACE OF SECURITY]
[THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE DECLARATION HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR CAPITAL
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION, AND NO TRANSFER
OF
THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
DTC
TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC)
MAY
BE REGISTERED EXCEPT IN THE CIRCUMSTANCES SPECIFIED IN THE
DECLARATION.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE TRUST
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
(1)
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY
ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE
ON
WHICH THE TRUST OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES
ACT) OF THE TRUST WAS THE HOLDER OF THIS SECURITY OR SUCH
(1)
Only
applicable if this Capital Security is a Global Capital Security.
INTEREST
OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF
ANY,
AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO
THE
DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER,” AS DEFINED IN RULE 144A, 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) PURSUANT
TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT
OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE
TRUST PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED
AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR
PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE,
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR
SECTION
4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER
OR
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED
TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE
CASE
MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND
HOLDING
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.
Certificate
Number
[_____]
Number
of
Capital Securities [_____]
CUSIP
NO
[ ]
Certificate
Evidencing Capital Securities
of
WT
CAPITAL TRUST II
Capital
Securities
(liquidation
amount $1,000 per Capital Security)
WT
Capital Trust II, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that
[
] is the registered owner (the “Holder”) of [______________] capital
securities of the Trust representing undivided beneficial interests in the
assets of the Trust, designated as MMCapS
SM
(liquidation amount $1,000 per Capital Security) (the “Capital Securities”).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust, dated as of
August
29, 2005, among John C. Warren, John F. Treanor and David V. Devault, as
Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, Washington Trust Bancorp, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in the assets of
the
Trust, including the designation of the terms of the Capital Securities as
set
forth in Annex I to the Declaration, as the same may be amended from time to
time (the “Declaration”). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee and the Indenture to the extent provided therein.
The
Sponsor will provide a copy of the Declaration, the Guarantee, and the Indenture
to the Holder without charge upon written request to the Sponsor at its
principal place of business.
By
acceptance of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Certificate and the Capital Securities evidenced hereby are governed by, and
shall be construed in accordance with, the laws of the State of Delaware,
without regard to principles of conflict of laws.
This
Certificate may contain more than one counterpart of the signature page and
this
Certificate may be executed and authenticated by the affixing of the signature
of an
Administrator
on behalf of the Trust, and the signature of the Institutional Trustee providing
authentication, to any 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 the Trust had executed, and the Institutional
Trustee had authenticated, a single signature page.
IN
WITNESS WHEREOF, the Trust has duly executed this
Certificate.
WT
CAPITAL TRUST II
By:________________________________
Name:
Title:
Administrator
Dated:
___________________________
CERTIFICATE
OF AUTHENTICATION
This
Certificate represents Capital Securities referred to in the within-mentioned
Declaration.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as the Institutional Trustee
By:_______________________________
Authorized
Officer
Dated:
___________________________
[FORM
OF
REVERSE OF SECURITY]
Distributions
on each Capital Security will be payable at a rate of interest per annum
rate
(the “Coupon Rate”) equal to (i) with respect to any Distribution Period prior
to the Distribution Period commencing on the Distribution Payment Date (as
defined herein) in November, 2010, 5.96% and (ii) with respect to
any
Distribution Period commencing on or after the Distribution Payment Date
in
November, 2010, LIBOR, as determined on the LIBOR Determination Date
for
such Distribution Period, plus 1.45%;
provided
,
however
,
that
the Coupon Rate for any Distribution Period commencing on or after the
Distribution Payment Date in November, 2010 may not exceed the Interest
Rate (as defined in the Indenture) for the related Interest Period (as defined
in the Indenture). Distributions in arrears for more than one Distribution
Period will bear interest thereon, compounded quarterly, at the applicable
Coupon Rate for each Distribution Period thereafter (to the extent permitted
by
applicable law). The term “Distributions”, as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures, unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has
funds
legally available in the Property Account therefor. The amount of Distributions
payable will be computed (i) with respect to any Distribution Period prior
to
the Distribution Period commencing on the Distribution Payment Date in
November, 2010, on the basis of a 360-day year consisting of twelve
30-day
months and (ii) with respect to any Distribution Period commencing on or
after
the Distribution Payment Date in November, 2010, on the basis of a
360-day
year and the actual number of days elapsed in such Distribution Period.
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on February 23, May 23, August 23 and November 23 of
each
year, commencing on November 23, 2005 (each, a “Distribution Payment Date”), and
on any earlier date of redemption, subject, in each case, to the Business
Day
convention specified in the Declaration. The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period for up to 20 consecutive quarterly periods (each
such extended interest payment period, together with all previous and future
consecutive extensions thereof, is referred to herein as an “Extension Period”)
at any time and from time to time on the Debentures, subject to the conditions
described below and in the Declaration and the Indenture. No Extension Period
may end on a date other than a Distribution Payment Date or extend beyond
the
Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as
the case may be. During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue, at
an annual rate equal to the Coupon Rate applicable during such Extension
Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by
applicable law. At the end of any Extension Period, the Debenture Issuer
shall
pay all Deferred Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that
prior to the termination of any Extension Period, the Debenture Issuer may
further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods.
Upon
the
termination of any Extension Period and upon the payment of all Deferred
Interest, the Debenture Issuer may commence a new Extension Period, subject
to
the requirements set forth herein and in the Declaration and the Indenture.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at
the end
thereof, but Deferred Interest shall accrue upon each installment of interest
that would otherwise have been due and payable during such Extension Period
until such installment is paid.
As
a
consequence of any Extension Period, Distributions will be deferred.
If
Distributions are deferred, the Distributions due shall be paid on the date
that
the related Extension Period terminates to Holders of the Capital Securities
as
they appear on the books and records of the Trust on the regular record date
immediately preceding the Distribution Payment Date on which such Extension
Period terminates to the extent that the Trust has funds legally available
for
the payment of such Distributions in the Property Account of the Trust.
The
Capital Securities shall be redeemable, and shall be entitled to the Liquidation
Distribution, as provided in the Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced
by this Capital Security Certificate to:
____________________________
____________________________
____________________________
(Insert
assignee’s social security or tax identification number)
____________________________
____________________________
____________________________
(Insert
address and zip code of assignee),
and
irrevocably appoints
________________________________________________________
as
agent
to transfer the Capital Securities evidenced by this Capital Security
Certificate on the books of the Trust. The agent may substitute another to
act
for it, him or her.
Date:__________________
Signature:__________________
(Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
Signature
Guarantee:
(1)
____________________________
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union, meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
EXHIBIT
A-2
FORM
OF
COMMON SECURITY CERTIFICATE
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES
LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION.
EXCEPT
AS
SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
Certificate
Number
[_____]
Number
of
Common Securities [____]
Certificate
Evidencing Common Securities
of
WT
CAPITAL TRUST II
WT
Capital Trust II, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Washington Trust Bancorp, Inc. is
the registered owner (the “Holder”) of 433 common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
(liquidation amount $1,000 per Common Security) (the “Common Securities”). The
Common Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Common Securities shall in all respects be subject to,
the
provisions of the Amended and Restated Declaration of Trust of the Trust,
dated
as of August 29, 2005, among John C. Warren, John F. Treanor and David V.
Devault, as Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, the Holder, as Sponsor, and the holders from time
to time
of undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Common Securities as set forth in Annex I
to the
Declaration, as the same may be amended from time to time (the “Declaration”).
Capitalized terms used herein but not defined shall have the meaning given
them
in the Declaration. The Sponsor will provide a copy of the Declaration and
the
Indenture to the Holder without charge upon written request to the Sponsor
at
its principal place of business.
As
set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of the Holder of Common Securities to payment in respect
of Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of holders of the Capital
Securities.
By
acceptance of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Certificate and the Common Securities evidenced hereby are governed by, and
shall be construed in accordance with, the laws of the State of Delaware,
without regard to principles of conflict of laws.
IN
WITNESS WHEREOF, the Trust has executed this Certificate this ___ day of
____,
2005.
WT
CAPITAL TRUST II
By:______________________________
Name:
Title:
Administrator
[FORM
OF
REVERSE OF SECURITY]
Distributions
payable on each Common Security will be identical in amount to the Distributions
payable on each Capital Security, which is at a per annum rate (the “Coupon
Rate”) equal to (i) with respect to any Distribution Period prior to the
Distribution Period commencing on the Distribution Payment Date (as defined
herein) in November, 2010, 5.96% and (ii) with respect to any Distribution
Period commencing on or after the Distribution Payment Date in
November, 2010 LIBOR, as determined on the LIBOR Determination Date
for
such Distribution Period, plus 1.45%;
provided
,
however
,
that
the Coupon Rate for any Distribution Period commencing on or after the
Distribution Payment Date in November, 2010 may not exceed the Interest
Rate (as defined in the Indenture) for the related Interest Period (as defined
in the Indenture). Distributions in arrears for more than one Distribution
Period will bear interest thereon, compounded quarterly, at the applicable
Coupon Rate for each Distribution Period thereafter (to the extent permitted
by
applicable law). The term “Distributions”, as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures, unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has
funds
legally available in the Property Account therefor. The amount of Distributions
payable will be computed (i) with respect to any Distribution Period prior
to
the Distribution Period commencing on the Distribution Payment Date in
November, 2010, on the basis of a 360-day year consisting of twelve
30-day
months and (ii) with respect to any Distribution Period commencing on or
after
the Distribution Payment Date in November, 2010, on the basis of a
360-day
year and the actual number of days elapsed in such Distribution
Period.
Except
as
otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on February 23, May 23, August 23 and November 23 of
each
year, commencing on November 23, 2005 (each, a “Distribution Payment Date”), and
on any earlier date of redemption, subject, in each case, to the Business
Day
convention specified in the Declaration. The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period for up to 20 consecutive quarterly periods (each
such extended interest payment period, together with all previous and future
consecutive extensions thereof, is referred to herein as an “Extension Period”)
at any time and from time to time on the Debentures, subject to the conditions
described below and in the Declaration and the Indenture. No Extension Period
may end on a date other than a Distribution Payment Date or extend beyond
the
Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as
the case may be. During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue, at
an annual rate equal to the Coupon Rate applicable during such Extension
Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by
applicable law. At the end of any Extension Period, the Debenture Issuer
shall
pay all Deferred Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that
prior to the termination of any Extension Period, the Debenture Issuer may
further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive
extensions
that are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the Debenture Issuer may commence a new Extension
Period,
subject to the requirements set forth herein and in the Declaration and
the
Indenture.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at
the end
thereof, but Deferred Interest shall accrue upon each installment of interest
that would otherwise have been due and payable during such Extension Period
until such installment is paid.
As
a
consequence of any Extension Period, Distributions will be deferred.
If
Distributions are deferred, the Distributions due shall be paid on the date
that
the related Extension Period terminates to Holders of the Securities as they
appear on the books and records of the Trust on the regular record date
immediately preceding the Distribution Payment Date on which such Extension
Period terminates to the extent that the Trust has funds legally available
for
the payment of such Distributions in the Property Account of the Trust.
The
Common Securities shall be redeemable, and shall be entitled to the Liquidation
Distribution, as provided in the Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers the Common Securities evidenced
by this Common Security Certificate to:
____________________________
____________________________
____________________________
(Insert
assignee’s social security or tax identification number)
____________________________
____________________________
____________________________
(Insert
address and zip code of assignee),
and
irrevocably
appoints
as
agent
to transfer the Common Securities evidenced by this Common Security Certificate
on the books of the 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 Common Security
Certificate)
Signature
Guarantee:
(1)
________________________
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union, meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
EXHIBIT
B
FORM
OF
ADMINISTRATOR’S CERTIFICATE
OF
THE
TRUST
Pursuant
to Section 2.6(a)(i)(P) of the Amended and Restated Declaration of Trust,
dated
as of August 29, 2005 (as amended or supplemented from time to time, the
“Trust
Agreement”), of WT Capital Trust II (the “Trust”) among Washington Trust
Bancorp, Inc. as Sponsor, Wilmington Trust Company, as Institutional Trustee,
Wilmington Trust Company, as Delaware Trustee, the Administrators named
therein,
and the holders from time to time of beneficial interests in the assets
of the
Trust, the undersigned (on behalf of the Trust) hereby certifies that he/she
is
an Administrator of the Trust and that, to his/her knowledge under the
terms of
the Trust Agreement, the Trust has complied (without regard to any period
of
grace or requirement of notice provided under the Trust Agreement) with
all
conditions and covenants under the Trust Agreement for the year
20__.
Capitalized
terms used herein, and not otherwise defined herein, have respective meanings
assigned thereto in the Trust Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this Administrator’s Certificate
as of ___________, 20___.
FORM
OF
TRANSFEREE CERTIFICATE
TO
BE
EXECUTED BY ACCREDITED INVESTORS
__________,
[ ]
Washington
Trust Bancorp, Inc.
WT
Capital Trust II
23
Broad
Street, Westerly, Rhode Island 02891
Re:
Purchase
of $[SPECIFY] liquidation amount of MMCapS
SM
(the
“Capital Securities”) of WT Capital Trust II (the “Trust”)
Ladies
and Gentlemen:
In
connection with our purchase of the Capital Securities, we confirm
that:
1.
We
understand that the Capital Securities of the Trust have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), and may not
be offered or sold except as permitted in the following sentence. We agree
on
our own behalf and on behalf of any investor account for which we are purchasing
the Capital Securities that, if we decide to offer, sell or otherwise transfer
any such Capital Securities prior to the date which is the later of (i) two
years (or such shorter period of time as permitted by Rule 144(k) under the
Securities Act) after the later of (Y) the date of original issuance of the
Capital Securities and (Z) the last date on which the Trust or any Affiliate
(as
defined in Rule 405 under the Securities Act) of the Trust was the holder
of any
such Capital Securities (or any predecessor thereto) and (ii) such later
date,
if any, as may be required by any subsequent change in applicable law (the
“Resale Restriction Termination Date”), then such offer, sale or other transfer
will be made only (a) to the Company or the Trust, (b) pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a “QIB”), that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (c) pursuant to an exemption
from registration, to an “accredited investor” within the meaning of
subparagraph (a) (1), (2), (3), (7) or (8) of Rule 501 under the Securities
Act
that is acquiring any such Capital Securities for its own account or for
the
account of such an accredited investor for investment purposes and not with
a
view to, or for offer or sale in connection with, any distribution thereof
in
violation of the Securities Act, (d) pursuant to offers and sales to a non-U.S.
Person that occur outside the United States pursuant to Regulation S under
the
Securities Act, or (e) pursuant to another available exemption from the
registration requirements of the Securities Act, and in each of the foregoing
cases in accordance with any applicable state securities laws and any
requirements of law that govern the disposition of our property. If any resale
or other transfer of the Capital Securities is proposed to be made pursuant
to
clause (c) above, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Institutional Trustee as
Transfer Agent, which shall provide as applicable, among other things, that
the
transferee is an accredited investor within the meaning of
subparagraph
(a)(1), (2), (3), (7) or (8) of Rule 501 under the Securities Act that
is
acquiring such Capital Securities for investment purposes and not for any
distribution in violation of the Securities Act. We acknowledge on our
behalf
and on behalf of any investor account for which we are purchasing Capital
Securities that the Company and the Trust reserve the right prior to any
offer,
sale or other transfer pursuant to clause (c) or (e) to require the delivery
of
any opinion of counsel, certifications and/or other information satisfactory
to
Washington Trust Bancorp, Inc. (the “Company”) and the Trust. We understand that
the certificates for any Capital Securities that we receive prior to the
Resale
Restriction Termination Date will bear a legend substantially to the effect
of
the foregoing.
2.
We
are an
accredited investor within the meaning of subparagraph (a) (1), (2), (3),
(7) or
(8) of Rule 501 under the Securities Act purchasing for our own account or
for
the account of such an accredited investor, and we are acquiring the Capital
Securities for investment purposes and not with view to, or for offer or
sale in
connection with, any distribution in violation of the Securities Act, and
we
have such knowledge and experience in financial and business matters as to
be
capable of evaluating the merits and risks of our investment in the Capital
Securities, and we and any account for which we are acting are each able
to bear
the economic risks of our or its investment.
3.
We
are
acquiring the Capital Securities purchased by us for our own account (or
for one
or more accounts as to each of which we exercise sole investment discretion
and
have authority to make, and do make, the statements contained in this letter)
and not with a view to any distribution of the Capital Securities in violation
of the Securities Act, subject, nevertheless, to the understanding that the
disposition of our property will at all times be and remain within our
control.
4.
In
the
event that we purchase any Capital Securities, we will acquire such Capital
Securities having an aggregate liquidation amount of not less than $100,000
for
our own account and for each separate account for which we are
acting.
5.
We
acknowledge that we either (A) are not a fiduciary of a pension, profit-sharing
or other employee benefit plan
or
arrangement
subject
to the Employee Retirement Income Security Act of 1974, as amended,
or
to
Section 4975 of the Internal Revenue Code of 1986, as amended
(a
“Plan”), or an entity whose assets include “plan assets” by reason of any Plan’s
investment in the entity and are not purchasing the Capital Securities on
behalf
of or with “plan assets” by reason of any Plan’s investment in the entity and
are not purchasing the Capital Securities on behalf of or with “plan assets” of
any Plan or (B) are eligible for the exemptive relief available under one
or
more of the following prohibited transaction class exemptions (“PTCEs”) issued
by the U.S. Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or
84-14.
6.
We
acknowledge that each Plan, by its purchase of the Capital Securities, will
be
deemed to have directed the Trust to invest in the junior subordinated debt
securities of the Company, and to have consented to the appointment of the
institutional trustee of the Trust.
7.
We
acknowledge that the Company, the Trust and others will rely upon the truth
and
accuracy of the foregoing acknowledgments, representations, warranties and
agreements and agree that if any of our acknowledgments, representations,
warranties and
agreements
are no longer accurate, we shall promptly notify the applicable Placement
Agent.
If we are acquiring any Capital Securities as a fiduciary or agent for
one or
more investor accounts, we represent that we have sole discretion with
respect
to each such investor account and that we have full power to make the foregoing
acknowledgments, representations and agreements on behalf of each such
investor
account.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy thereof to any interested party in any administrative or
legal
proceeding or other inquiry with respect to matters covered hereby.
__________________________________
(Name
of
Purchaser)
By:_______________________________
Date:______________________________
Upon
transfer, the Capital Securities should be registered in the name of the
new
beneficial owner as follows.
Name:_______________________
Address:______________________
Taxpayer
ID Number:_____________________
EXHIBIT
D
FORM
OF
TRANSFEROR CERTIFICATE
TO
BE
EXECUTED FOR QIBs
__________,
[ ]
Washington
Trust Bancorp, Inc.
WT
Capital Trust II
23
Broad
Street, Westerly, Rhode Island 02891
Re:
Purchase
of $[SPECIFY] liquidation amount of MMCapS
SM
(the
“Capital Securities”) of WT Capital Trust II (the “Trust”)
Reference
is hereby made to the Amended and Restated Declaration of Trust of WT Capital
Trust II, dated as of August 29, 2005 (the “Declaration”), among John C. Warren,
John F. Treanor and David V. Devault, as Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, Washington Trust Bancorp, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in the assets
of the
Trust. Capitalized terms used but not defined herein shall have the meanings
given them in the Declaration.
This
letter relates to $[_______________] aggregate liquidation amount of Capital
Securities which are held in the name of [name of transferor] (the
“Transferor”).
In
accordance with Section 8.2(b) of the Declaration, the Transferor does hereby
certify that such Capital Securities are being transferred in accordance
with
(i) the transfer restrictions set forth in the Capital Securities and (ii)
Rule
144A under the Securities Act (“Rule 144A”), to a transferee that the Transferor
reasonably believes is purchasing the Capital Securities for its own account
or
an account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a “qualified institutional
buyer” within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws
of
any state of the United States or any other jurisdiction.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy thereof to any interested party in any administrative or
legal
proceeding or other inquiry with respect to matters covered hereby.
_________________________
(Name
of
Transferor)
By:__________________________
Name:
Title:__________________________
Date:__________________________
EXHIBIT
E
FORM
OF
TRANSFEREE CERTIFICATE
TO
BE
EXECUTED BY NON-U.S. PERSONS
__________,
[ ]
Washington
Trust Bancorp, Inc.
WT
Capital Trust II
23
Broad
Street, Westerly, Rhode Island 02891
Re:
Purchase
of $[SPECIFY] liquidation amount of MMCapS
SM
(the
“Capital Securities”) of WT Capital Trust II (the “Trust”)
Reference
is hereby made to the Amended and Restated Declaration of Trust of WT Capital
Trust II, dated as of August 29, 2005 (the “Declaration”), among John C. Warren,
John F. Treanor and David V. Devault, as Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, Washington Trust Bancorp, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in the assets
of the
Trust. Capitalized terms used but not defined herein shall have the meanings
given them in the Declaration.
This
letter relates to $[_______________] aggregate liquidation amount of Capital
Securities which are held in the name of [name of transferor].
In
accordance with Section 8.2(b) of the Declaration, we do hereby certify that
(i)
we are not a “U.S. person” (as such term is defined in Rule 902 under the
Securities Act), (ii) we are not acquiring the Capital Securities for the
account or benefit of any U.S. person, and (iii) the offer and sale of Capital
Securities to us constitutes an “offshore transaction” under Regulation S under
the Securities Act.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy thereof to any interested party in any administrative or
legal
proceeding or other inquiry with respect to matters covered hereby.
_________________________
(Name
of
Transferee)
By:__________________________
Name:
Title:__________________________
Date:__________________________
Exhibit
10.7
WASHINGTON
TRUST BANCORP, INC.
as
Issuer
INDENTURE
Dated
as
of August 29, 2005
WILMINGTON
TRUST COMPANY
as
Trustee
FIXED/FLOATING
RATE JUNIOR SUBORDINATED DEBT SECURITIES DUE 2035
|
ARTICLE
I DEFINITIONS
|
|
|
Section
1.01
|
Definitions.
|
|
|
|
|
|
|
ARTICLE
II DEBT SECURITIES
|
|
|
Section
2.01
|
Authentication
and Dating.
|
|
|
Section
2.02
|
Form
of Trustee’s Certificate of Authentication.
|
|
|
Section
2.03
|
Form
and Denomination of Debt Securities.
|
|
|
Section
2.04
|
Execution
of Debt Securities.
|
|
|
Section
2.05
|
Exchange
and Registration of Transfer of Debt Securities.
|
|
|
Section
2.06
|
Mutilated,
Destroyed, Lost or Stolen Debt Securities.
|
|
|
Section
2.07
|
Temporary
Debt Securities.
|
|
|
Section
2.08
|
Payment
of Interest.
|
|
|
Section
2.09
|
Cancellation
of Debt Securities Paid, etc.
|
|
|
Section
2.10
|
Computation
of Interest.
|
|
|
Section
2.11
|
Extension
of Interest Payment Period.
|
|
|
Section
2.12
|
CUSIP
Numbers.
|
|
|
Section
2.13
|
Global
Debentures.
|
|
|
|
|
|
|
ARTICLE
III PARTICULAR COVENANTS OF THE COMPANY
|
|
|
Section
3.01
|
Payment
of Principal, Premium and Interest; Agreed Treatment of the Debt
Securities.
|
|
|
Section
3.02
|
Offices
for Notices and Payments, etc.
|
|
|
Section
3.03
|
Appointments
to Fill Vacancies in Trustee’s Office.
|
|
|
Section
3.04
|
Provision
as to Paying Agent.
|
|
|
Section
3.05
|
Certificate
to Trustee.
|
|
|
Section
3.06
|
Additional
Amounts.
|
|
|
Section
3.07
|
Compliance
with Consolidation Provisions.
|
|
|
Section
3.08
|
Limitation
on Dividends.
|
|
|
Section
3.09
|
Covenants
as to the Trust.
|
|
|
|
|
|
|
ARTICLE
IV LISTS
|
|
|
|
Section
4.01
|
Securityholders’
Lists.
|
|
|
Section
4.02
|
Preservation
and Disclosure of Lists.
|
|
|
Section
4.03
|
Financial
and Other Information.
|
|
|
|
|
|
|
ARTICLE
V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
|
|
|
Section
5.01
|
Events
of Default.
|
|
|
Section
5.02
|
Payment
of Debt Securities on Default; Suit Therefor.
|
|
|
Section
5.03
|
Application
of Moneys Collected by Trustee.
|
|
|
Section
5.04
|
Proceedings
by Securityholders.
|
|
|
Section
5.05
|
Proceedings
by Trustee.
|
|
|
Section
5.06
|
Remedies
Cumulative and Continuing.
|
|
|
Section
5.07
|
Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders.
|
|
|
Section
5.08
|
Notice
of Defaults.
|
|
|
Section
5.09
|
Undertaking
to Pay Costs.
|
|
|
|
|
|
|
ARTICLE
VI CONCERNING THE TRUSTEE
|
|
|
Section
6.01
|
Duties
and Responsibilities of Trustee.
|
|
|
Section
6.02
|
Reliance
on Documents, Opinions, etc.
|
|
|
Section
6.03
|
No
Responsibility for Recitals, etc.
|
|
|
Section
6.04
|
Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own
Debt Securities.
|
|
|
Section
6.05
|
Moneys
to be Held in Trust.
|
|
|
Section
6.06
|
Compensation
and Expenses of Trustee.
|
|
|
Section
6.07
|
Officers’
Certificate as Evidence.
|
|
|
Section
6.08
|
Eligibility
of Trustee.
|
|
|
Section
6.09
|
Resignation
or Removal of Trustee.
|
|
|
Section
6.10
|
Acceptance
by Successor Trustee.
|
|
|
Section
6.11
|
Succession
by Merger, etc.
|
|
|
Section
6.12
|
Authenticating
Agents.
|
|
|
|
|
|
|
ARTICLE
VII CONCERNING THE SECURITYHOLDERS
|
|
|
Section
7.01
|
Action
by Securityholders.
|
|
|
Section
7.02
|
Proof
of Execution by Securityholders.
|
|
|
Section
7.03
|
Who
Are Deemed Absolute Owners.
|
|
|
Section
7.04
|
Debt
Securities Owned by Company Deemed Not Outstanding.
|
|
|
Section
7.05
|
Revocation
of Consents; Future Holders Bound.
|
|
|
|
|
|
|
ARTICLE
VIII SECURITYHOLDERS’ MEETINGS
|
|
|
Section
8.01
|
Purposes
of Meetings.
|
|
|
Section
8.02
|
Call
of Meetings by Trustee.
|
|
|
Section
8.03
|
Call
of Meetings by Company or Securityholders.
|
|
|
Section
8.04
|
Qualifications
for Voting.
|
|
|
Section
8.05
|
Regulations.
|
|
|
Section
8.06
|
Voting.
|
|
|
Section
8.07
|
Quorum;
Actions.
|
|
|
|
|
|
|
ARTICLE
IX SUPPLEMENTAL INDENTURES
|
|
|
Section
9.01
|
Supplemental
Indentures without Consent of Securityholders.
|
|
|
Section
9.02
|
Supplemental
Indentures with Consent of Securityholders.
|
|
|
Section
9.03
|
Effect
of Supplemental Indentures.
|
|
|
Section
9.04
|
Notation
on Debt Securities.
|
|
|
Section
9.05
|
Evidence
of Compliance of Supplemental Indenture to be Furnished to
Trustee.
|
|
|
|
|
|
|
ARTICLE
X REDEMPTION OF SECURITIES
|
|
|
Section
10.01
|
Optional
Redemption.
|
|
|
Section
10.02
|
Special
Event Redemption.
|
|
|
Section
10.03
|
Notice
of Redemption; Selection of Debt Securities.
|
|
|
Section
10.04
|
Payment
of Debt Securities Called for Redemption.
|
|
|
|
|
|
|
ARTICLE
XI CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
|
|
|
Section
11.01
|
Company
May Consolidate, etc., on Certain Terms.
|
|
|
Section
11.02
|
Successor
Entity to be Substituted.
|
|
|
Section
11.03
|
Opinion
of Counsel to be Given to Trustee.
|
|
|
|
|
|
|
ARTICLE
XII SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
Section
12.01
|
Discharge
of Indenture.
|
|
|
Section
12.02
|
Deposited
Moneys to be Held in Trust by Trustee.
|
|
|
Section
12.03
|
Paying
Agent to Repay Moneys Held.
|
|
|
Section
12.04
|
Return
of Unclaimed Moneys.
|
|
|
|
|
|
|
ARTICLE
XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
|
|
|
Section
13.01
|
Indenture
and Debt Securities Solely Corporate Obligations.
|
|
|
|
|
|
|
ARTICLE
XIV MISCELLANEOUS PROVISIONS
|
|
|
Section
14.01
|
Successors.
|
|
|
Section
14.02
|
Official
Acts by Successor Entity.
|
|
|
Section
14.03
|
Surrender
of Company Powers.
|
|
|
Section
14.04
|
Addresses
for Notices, etc.
|
|
|
Section
14.05
|
Governing
Law.
|
|
|
Section
14.06
|
Evidence
of Compliance with Conditions Precedent.
|
|
|
Section
14.07
|
Business
Day Convention.
|
|
|
Section
14.08
|
Table
of Contents, Headings, etc.
|
|
|
Section
14.09
|
Execution
in Counterparts.
|
|
|
Section
14.10
|
Separability.
|
|
|
Section
14.11
|
Assignment.
|
|
|
Section
14.12
|
Acknowledgment
of Rights.
|
|
|
|
|
|
|
ARTICLE
XV SUBORDINATION OF DEBT SECURITIES
|
|
|
Section
15.01
|
Agreement
to Subordinate.
|
|
|
Section
15.02
|
Default
on Senior Indebtedness.
|
|
|
Section
15.03
|
Liquidation;
Dissolution; Bankruptcy.
|
|
|
Section
15.04
|
Subrogation.
|
|
|
Section
15.05
|
Trustee
to Effectuate Subordination.
|
|
|
Section
15.06
|
Notice
by the Company.
|
|
|
Section
15.07
|
Rights
of the Trustee; Holders of Senior Indebtedness.
|
|
|
Section
15.08
|
Subordination
May Not Be Impaired.
|
|
EXHIBITS
EXHIBIT
A
Form
of
Debt Security
EXHIBIT
B
Form
of
Certificate of Officer of the Company
THIS
INDENTURE, dated as of August 29, 2005, between Washington Trust Bancorp,
Inc.,
a bank holding company incorporated in the State of Rhode Island (hereinafter
sometimes called the “Company”), and Wilmington Trust Company, a Delaware
banking corporation, as trustee (hereinafter sometimes called the
“Trustee”).
W
I T N E
S S E T H :
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance
of its Fixed/Floating Rate Junior Subordinated Debt Securities due 2035 (the
“Debt Securities”) under this Indenture and to provide, among other things, for
the execution and authentication, delivery and administration thereof, the
Company has duly authorized the execution of this Indenture.
NOW,
THEREFORE, in consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with
the
Trustee for the equal and proportionate benefit of the respective holders
from
time to time of the Debt Securities as follows:
ARTICLE
I
DEFINITIONS
Section
1.01
Definitions
.
The
terms
defined in this Section 1.01 (except as herein otherwise expressly provided
or
unless the context otherwise requires) for all purposes of this Indenture
and of
any indenture supplemental hereto shall have the respective meanings specified
in this Section 1.01. All accounting terms used herein and not expressly
defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles and the term “generally accepted accounting
principles” means such accounting principles as are generally accepted in the
United States at the time of any computation. The words “herein,”“hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
“Additional
Amounts” has the meaning set forth in Section 3.06.
“Additional
Provisions” has the meaning set forth in Section 15.01.
“Administrative
Action” has the meaning specified within the definition of “Tax Event” in this
Section 1.01.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Capital Security or a Debt Security represented by
a
Global Debenture, the rules and procedures of the Depositary for such Book-Entry
Capital Security or Debt Security represented by a Global Debenture, in each
case to the extent applicable to such transaction and as in effect from time
to
time.
“Authenticating
Agent” means any agent or agents of the Trustee which at the time shall be
appointed and acting pursuant to Section 6.12.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
“Board
of
Directors” means the board of directors or the executive committee or any other
duly authorized designated officers of the Company.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
“Book-Entry
Capital Security” means a Capital Security the ownership and transfers of which
shall be reflected and made, as applicable, through book entries by the
Depositary.
“Business
Day” means any day other than a Saturday, Sunday or any other day on which
banking institutions in Wilmington, Delaware, The City of New York or
Providence, Rhode Island are permitted or required by law or executive order
to
close.
“Calculation
Agent” means the Person identified as “Trustee” in the first paragraph hereof
with respect to the Debt Securities and the Institutional Trustee with respect
to the Trust Securities.
“Capital
Securities” means undivided beneficial interests in the assets of the Trust
which are designated as “MMCapS
SM
”
and
rank
pari
passu
with
Common Securities issued by the Trust;
provided
,
however
,
that if
an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of such Capital
Securities.
“Capital
Securities Guarantee” means the guarantee agreement that the Company will enter
into with Wilmington Trust Company or other Persons that operates directly
or
indirectly for the benefit of holders of Capital Securities of the
Trust.
“Capital
Treatment Event” means, if the Company is organized and existing under the laws
of the United States or any state thereof or the District of Columbia, the
receipt by the Company and the Trust of an Opinion of Counsel experienced
in
such matters to the effect that, as a result of any amendment to, or change
in,
the laws, rules or regulations of the United States or any political subdivision
thereof or therein, or as the result of any official or administrative
pronouncement or action or decision interpreting or applying such laws, rules
or
regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of original issuance
of the
Debt Securities, there is more than an insubstantial risk that the Company
will
not, within 90 days of the date of such opinion, be entitled to treat Capital
Securities as “Tier 1 Capital” (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve (or any successor
regulatory authority with jurisdiction over bank holding companies), as then
in
effect and applicable to the Company;
provided
,
however
,
that
the inability of the Company to treat all or any portion of the aggregate
Liquidation Amount of the Capital Securities as “Tier 1 Capital” shall not
constitute
the
basis
for a Capital Treatment Event if such inability results from the Company
having
preferred stock, minority interests in consolidated subsidiaries and any
other
class of security or interest which the Federal Reserve (or any successor
regulatory authority with jurisdiction over bank holding companies) may
now or
hereafter accord “Tier 1 Capital” treatment that, in the aggregate, exceed the
amount which may now or hereafter qualify for treatment as “Tier 1 Capital”
under applicable capital adequacy guidelines of the Federal Reserve (or
any
successor regulatory authority with jurisdiction over bank holding companies);
provided
,
further
,
however
,
that
the distribution of the Debt Securities in connection with the liquidation
of
the Trust by the Company shall not in and of itself constitute a Capital
Treatment Event unless such liquidation shall have occurred in connection
with a
Tax Event or an Investment Company Event. For the avoidance of doubt, the
inability of the Company to treat all or any portion of the aggregate
Liquidation Amount of the Capital Securities as “Tier 1 Capital” as a result of
the changes effected by the final rule adopted by the Federal Reserve on
March
1, 2005 shall not constitute the basis for a Capital Treatment
Event.
“Certificate”
means a certificate signed by any one of the principal executive officer,
the
principal financial officer or the principal accounting officer of the
Company.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Common
Securities” means undivided beneficial interests in the assets of the Trust
which are designated as “Common Securities” and rank
pari
passu
with
Capital Securities issued by the Trust;
provided
,
however
,
that if
an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of such Capital
Securities.
“Company”
means Washington Trust Bancorp, Inc., a bank holding company incorporated
in the
State of Rhode Island, and, subject to the provisions of Article XI, shall
include its successors and assigns.
“Debt
Security” or “Debt Securities” has the meaning stated in the first recital of
this Indenture.
“Debt
Security Register” has the meaning specified in Section 2.05.
“Declaration”
means the Amended and Restated Declaration of Trust of the Trust, dated as
of
August 29, 2005, as amended or supplemented from time to time.
“Default”
means any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
“Defaulted
Interest” has the meaning set forth in Section 2.08.
“Deferred
Interest” has the meaning set forth in Section 2.11.
“Depositary”
means an organization registered as a clearing agency under the Exchange
Act
that is designated as Depositary by the Company. DTC will be the initial
Depositary.
“Depositary
Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers
and pledges of securities deposited with or on behalf of the
Depositary.
“DTC”
means The Depository Trust Company, a New York corporation.
“Event
of
Default” means any event specified in Section 5.01, which has continued for the
period of time, if any, and after the giving of the notice, if any, therein
designated.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Extension
Period” has the meaning set forth in Section 2.11.
“Federal
Reserve” means the Board of Governors of the Federal Reserve
System.
“Global
Debenture” means a global certificate that evidences all or part of the Debt
Securities the ownership and transfers of which shall be reflected and made,
as
applicable, through book entries by the Depositary and the Depositary
Participants.
“Indenture”
means this Indenture as originally executed or, if amended or supplemented
as
herein provided, as so amended or supplemented, or both.
“Institutional
Trustee” has the meaning set forth in the Declaration.
“Interest
Payment Date” means February 23, May 23, August 23 and November 23 of each year,
commencing on November 23, 2005, subject to Section 14.07.
“Interest
Period” has the meaning set forth in Section 2.08.
“Interest
Rate” means, a per annum rate of interest equal to (1) with respect to any
Interest Period prior to the Interest Period commencing on the Interest Payment
Date in November, 2010, 5.96% and (2) with respect to any Interest
Period
commencing on or after the Interest Payment Date in November, 2010,
LIBOR,
as determined on the LIBOR Determination Date for such Interest Period plus,
1.45%;
provided
,
however
,
that
the Interest Rate for any Interest Period commencing on or after the Interest
Payment Date in November, 2010 may not exceed the highest rate permitted
by
New York law, as the same may be modified by United States law of general
application.
“Investment
Company Event” means the receipt by the Company and the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of a
change
in law or regulation or written change in interpretation or application of
law
or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or,
within
90 days of the date of such opinion will be,
considered
an “investment company” that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after
the
date of the original issuance of the Debt Securities.
“LIBOR”
means the London Interbank Offered Rate for three-month U.S. Dollar deposits
in
Europe as determined by the Calculation Agent according to Section
2.10(b).
“LIBOR
Banking Day” has the meaning set forth in Section 2.10(b)(i).
“LIBOR
Business Day” has the meaning set forth in Section 2.10(b)(i).
“LIBOR
Determination Date” has the meaning set forth in Section
2.10(b)(i).
“Liquidation
Amount” means the liquidation amount of $1,000 per Trust Security.
“Major
Depository Institution Subsidiary” means any subsidiary of the Company that (i)
is a depository institution and (ii) meets the definition of “significant
subsidiary” within the meaning of Rule 405 under the Securities
Act.
“Maturity
Date” means November 23, 2035, subject to Section 14.07.
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, the Vice
Chairman, the President or any Vice President, and by the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 14.06 if and to the extent required by the provisions
of
such Section.
“Opinion
of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company or may be other counsel reasonably
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 14.06 if and to the extent required by the provisions
of
such Section.
The
term
“outstanding,” when used with reference to Debt Securities, subject to the
provisions of Section 7.04, means, as of any particular time, all Debt
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
(a)
Debt
Securities theretofore canceled by the Trustee or the Authenticating Agent
or
delivered to the Trustee for cancellation;
(b)
Debt
Securities, or portions thereof, for the payment or redemption of which moneys
in the necessary amount shall have been deposited in trust with the Trustee
or
with any Paying Agent (other than the Company) or shall have been set aside
and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent);
provided
,
that,
if such Debt Securities, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been given as provided
in
Articles X and XIV or provision satisfactory to the Trustee shall have been
made
for giving such notice; and
(c)
Debt
Securities paid pursuant to Section 2.06 or in lieu of or in substitution
for
which other Debt Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.06 unless proof satisfactory to the Company and
the
Trustee is presented that any such Debt Securities are held by bona fide
holders
in due course.
“Optional
Redemption Date” has the meaning set forth in Section 10.01.
“Optional
Redemption Price” means an amount in cash equal to 100% of the principal amount
of the Debt Securities being redeemed plus unpaid interest accrued on such
Debt
Securities to the related Optional Redemption Date.
“Paying
Agent” has the meaning set forth in Section 3.04(e).
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Predecessor
Security” of any particular Debt Security means every previous Debt Security
evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security; and, for the purposes of this definition, any Debt
Security authenticated and delivered under Section 2.06 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt
as
the lost, destroyed or stolen Debt Security.
“Principal
Office of the Trustee” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at all times shall be located within the United States and at the time
of
the execution of this Indenture shall be Rodney Square North, 1100 North
Market
Street, Wilmington, DE 19890-0001.
“Reference
Banks” has the meaning set forth in Section 2.10(b)(ii).
“Resale
Restriction Termination Date” means, with respect to any Debt Security, the date
which is the later of (i) two years (or such shorter period of time as permitted
by Rule 144(k) under the Securities Act) after the later of (y) the date
of
original issuance of such Debt Security and (z) the last date on which the
Company or any Affiliate (as defined in Rule 405 under the Securities Act)
of
the Company was the holder of such Debt Security (or any predecessor thereto)
and (ii) such later date, if any, as may be required by any subsequent change
in
applicable law.
“Responsible
Officer” means, with respect to the Trustee, any officer within the Principal
Office of the Trustee with direct responsibility for the administration of
the
Indenture, including any vice-president, any assistant vice-president, any
secretary, any assistant secretary, the treasurer, any assistant treasurer,
any
trust officer or other officer of the Principal Office of the Trustee
customarily performing functions similar to those performed by any of the
above
designated officers and also means, with respect to a particular corporate
trust
matter, any other officer to whom such matter is referred because of that
officer’s knowledge of and familiarity with the particular subject.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder,”“holder
of Debt Securities” or other similar terms, means any Person in whose name at
the time a particular Debt Security is registered on the Debt Security
Register.
“Senior
Indebtedness” means, with respect to the Company, (i) the principal, premium, if
any, and interest in respect of (A) indebtedness of the Company for money
borrowed, as well as similar obligations arising from off-balance sheet
guarantees and direct credit substitutes and (B) indebtedness evidenced by
securities, debentures, notes, bonds or other similar instruments issued
by the
Company, (ii) all capital lease obligations of the Company, (iii) all
obligations of the Company issued or assumed as the deferred purchase price
of
property, all conditional sale obligations of the Company and all obligations
of
the Company under any title retention agreement (but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of
business), (iv) all obligations of the Company for the reimbursement of any
letter of credit, any banker’s acceptance, any security purchase facility, any
repurchase agreement or similar arrangement, all obligations associated with
derivative products such as interest rate and foreign exchange contracts
and
commodity contracts, any interest rate swap, any other hedging arrangement,
any
obligation under options or any similar credit or other transaction, (v)
all
obligations of the type referred to in clauses (i) through (iv) above of
other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise and (vi) all obligations of the type referred
to
in clauses (i) through (v) above of other Persons secured by any lien on
any
property or asset of the Company (whether or not such obligation is assumed
by
the Company), whether the obligations of the type referred to in clauses
(i)
through (vi) above were incurred on or prior to the date of this Indenture
or
thereafter incurred, unless, with the prior approval of the Federal Reserve
if
not otherwise generally approved, it is provided in the instrument creating
or
evidencing the same or pursuant to which the same is outstanding that such
obligations are not superior or are
pari
passu
in right
of payment to the Debt Securities;
provided
,
however
,
that
Senior Indebtedness shall not include (A) any debt securities issued to any
trust other than the Trust (or a trustee of such trust) that is a financing
vehicle of the Company (a “financing entity”) in connection with the issuance by
such financing entity of equity or other securities in transactions
substantially similar in structure to the transactions contemplated hereunder
and in the Declaration or (B) any guarantees of the Company in respect of
the
equity or other securities of any financing entity referred to in clause
(A)
above.
“Special
Event” means any of a Tax Event, an Investment Company Event or a Capital
Treatment Event.
“Special
Redemption Date” has the meaning set forth in Section 10.02.
“Special
Redemption Price” means, with respect to the redemption of any Debt Security
following a Special Event, an amount in cash equal to 104.00% of the principal
amount of Debt Securities to be redeemed prior to November 23, 2006 and
thereafter equal to the percentage of the principal amount of the Debt
Securities that is specified below for the Special Redemption Date plus,
in each
case, unpaid interest accrued thereon to the Special Redemption
Date:
|
Special
Redemption During the 12-Month
Period
Beginning November 23,
|
Percentage
of Principal Amount
|
|
2006
|
103.20%
|
|
2007
|
102.40%
|
|
2008
|
101.60%
|
|
2009
|
100.80%
|
|
2010
and thereafter
|
100.00%
|
“Subsidiary”
means, with respect to any Person, (i) any corporation, at least a majority
of
the outstanding voting stock of which is owned, directly or indirectly, by
such
Person or one or more of its Subsidiaries or by such Person and one or more
of
its Subsidiaries, (ii) any general partnership, joint venture or similar
entity,
at least a majority of the outstanding partnership or similar interests of
which
shall at the time be owned by such Person or one or more of its Subsidiaries
or
by such Person and one or more of its Subsidiaries, and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner. For the purposes of this definition, “voting stock” means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election
of a
majority of the directors (or the equivalent) of such Person, other than
shares,
interests, participations or other equivalents having such power only by
reason
of the occurrence of a contingency.
“Tax
Event” means the receipt by the Company and the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment
to
or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision
or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, regulatory procedure, notice or announcement (an
“Administrative Action”)) or judicial decision interpreting or applying such
laws or regulations, regardless of whether such Administrative Action or
judicial decision is issued to or in connection with a proceeding involving
the
Company or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance
of the Debt Securities, there is more than an insubstantial risk that: (i)
the
Trust is, or will be within 90 days of the date of such opinion, subject
to
United States federal income tax with respect to income received or accrued
on
the Debt Securities; (ii) if the Company is organized and existing under
the
laws of the United States or any state thereof or the District of Columbia,
interest payable by the Company on the Debt Securities is not, or within
90 days
of the date of such opinion, will not be, deductible by the Company, in whole
or
in part, for United States federal income tax purposes; or (iii) the Trust
is,
or
will be within 90 days of the date of such opinion, subject to or otherwise
required to pay, or required to withhold from distributions to holders
of Trust
Securities, more than a de minimis amount of other taxes (including withholding
taxes), duties, assessments or other governmental charges.
“Trust”
means WT Capital Trust II, the Delaware statutory trust, or any other similar
trust created for the purpose of issuing Capital Securities in connection
with
the issuance of Debt Securities under this Indenture, of which the Company
is
the sponsor.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.
“Trust
Securities” means Common Securities and Capital Securities of the
Trust.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof, and,
subject to the provisions of Article VI hereof, shall also include its
successors and assigns as Trustee hereunder.
“United
States” means the United States of America and the District of
Columbia.
“U.S.
Person” has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Code.
ARTICLE
II
DEBT
SECURITIES
Section
2.01
Authentication
and Dating
.
Upon
the
execution and delivery of this Indenture, or from time to time thereafter,
Debt
Securities in an aggregate principal amount not in excess of $14,433,000
may be
executed and delivered by the Company to the Trustee for authentication,
and the
Trustee shall thereupon authenticate and make available for delivery said
Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, President or Chief Financial Officer
or one of its Vice Presidents, without any further action by the Company
hereunder. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities,
the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be
fully protected in relying upon a copy of any Board Resolution or Board
Resolutions relating thereto and, if applicable, an appropriate record of
any
action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary or other officers with appropriate delegated
authority of the Company as the case may be.
The
Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if a Responsible
Officer of the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing
Securityholders.
The
definitive Debt Securities shall be typed, printed, lithographed or engraved
on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities, as evidenced by their execution
of such Debt Securities.
Section
2.02
Form
of Trustee’s Certificate of Authentication
.
The
Trustee’s certificate of authentication on all Debt Securities shall be in
substantially the following form:
This
certificate represents Debt Securities referred to in the within-mentioned
Indenture.
Wilmington
Trust Company,
not
in
its individual capacity
but
solely as trustee
By:
Authorized
Officer
Section
2.03
Form
and Denomination of Debt Securities
.
The
Debt
Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be in registered form without coupons and in minimum
denominations of $100,000 and any multiple of $1,000 in excess thereof. The
Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same
may
determine with the approval of the Trustee as evidenced by the execution
and
authentication thereof.
Section
2.04
Execution
of Debt Securities
.
The
Debt
Securities shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors,
Vice
Chairman, President or Chief Financial Officer or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents, under its corporate
seal
(if legally required) which may be affixed thereto or printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise, and which need not
be
attested. Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form herein before recited, executed
by the
Trustee or the Authenticating Agent by the manual or facsimile signature
of an
authorized officer, shall be entitled to the benefits of this Indenture or
be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall
be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to
the
benefits of this Indenture.
In
case
any officer of the Company who shall have signed any of the Debt Securities
shall cease to be such officer before the Debt Securities so signed shall
have
been authenticated and delivered by the Trustee or the Authenticating Agent,
or
disposed of by the
Company,
such Debt Securities nevertheless may be authenticated and delivered or
disposed
of as though the Person who signed such Debt Securities had not ceased
to be
such officer of the Company; and any Debt Security may be signed on behalf
of
the Company by such Persons as, at the actual date of the execution of
such Debt
Security, shall be the proper officers of the Company, although at the
date of
the execution of this Indenture any such person was not such an
officer.
Every
Debt Security shall be dated the date of its authentication.
Section
2.05
Exchange
and Registration of Transfer of Debt Securities
.
The
Company shall cause to be kept, at the office or agency maintained for the
purpose of registration of transfer and for exchange as provided in Section
3.02, a register (the “Debt Security Register”) for the Debt Securities issued
hereunder in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration and transfer of all Debt
Securities as provided in this Article II. Such register shall be in written
form or in any other form capable of being converted into written form within
a
reasonable time.
Debt
Securities to be exchanged may be surrendered at the Principal Office of
the
Trustee or at any office or agency to be maintained by the Company for such
purpose as provided in Section 3.02, and the Company shall execute, the Company
or the Trustee shall register and the Trustee or the Authenticating Agent
shall
authenticate and make available for delivery in exchange therefor, the Debt
Security or Debt Securities which the Securityholder making the exchange
shall
be entitled to receive. Upon due presentment for registration of transfer
of any
Debt Security at the Principal Office of the Trustee or at any office or
agency
of the Company maintained for such purpose as provided in Section 3.02, the
Company shall execute, the Company or the Trustee shall register and the
Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in the name of the transferee or transferees, a new Debt Security for a like
aggregate principal amount. Registration or registration of transfer of any
Debt
Security by the Trustee or by any agent of the Company appointed pursuant
to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
All
Debt
Securities presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating
Agent)
be duly endorsed by, or be accompanied by, a written instrument or instruments
of transfer in form satisfactory to the Company and either the Trustee or
the
Authenticating Agent duly executed by, the holder or such holder’s attorney duly
authorized in writing.
No
service charge shall be made for any exchange or registration of transfer
of
Debt Securities, but the Company or the Trustee may require payment of a
sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith other than exchanges pursuant to Section
2.07,
Section 9.04 or Section 10.04 not involving any transfer.
The
Company or the Trustee shall not be required to exchange or register a transfer
of any Debt Security for a period of 15 days immediately preceding the date
of
selection of Debt Securities for redemption.
Notwithstanding
the foregoing, Debt Securities may not be transferred prior to the Resale
Restriction Termination Date except in compliance with the legend set forth
below, unless otherwise determined by the Company in accordance with applicable
law, which legend shall be placed on each Debt Security:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE
DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE COMPANY
OR
ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE COMPANY
WAS THE HOLDER OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY
PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY ANY
SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE COMPANY, (B) PURSUANT
TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, AS DEFINED IN RULE
144A, 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) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR SUCH INTEREST OR PARTICIPATION
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO
OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT
TO REGULATION S UNDER THE SECURITIES ACT
OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES
ACT,
SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION
OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE
WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE
HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH
THE
FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR
THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF
THIS SECURITY IN DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED
NOT TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”). THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE
DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY,
IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
AND IS NOT SECURED.
Section
2.06
Mutilated,
Destroyed, Lost or Stolen Debt Securities
.
In
case
any Debt Security shall become mutilated or be destroyed, lost or stolen,
the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted
Debt
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case
of
destruction, loss or theft, the applicant shall also furnish to the Company
and
the Trustee evidence to their satisfaction of the destruction, loss or theft
of
such Debt Security and of the ownership thereof.
The
Trustee may authenticate any such substituted Debt Security and deliver the
same
upon the written request or authorization of any officer of the Company.
Upon
the issuance of any substituted Debt Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge
that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Debt Security which has matured or is about to mature or has
been
called for redemption in full shall become mutilated or be destroyed, lost
or
stolen, the Company may, instead of issuing a substitute Debt Security, pay
or
authorize the payment of the same (without surrender thereof except in the
case
of a mutilated Debt Security) if the applicant for such payment shall furnish
to
the Company and the Trustee such security or indemnity as may be required
by
them to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction,
loss
or theft of such Security and of the ownership thereof.
Every
substituted Debt Security issued pursuant to the provisions of this Section
2.06
by virtue of the fact that any such Debt Security is destroyed, lost or stolen
shall constitute
an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Debt Security shall be found at any time, and shall be entitled
to all the benefits of this Indenture equally and proportionately with
any and
all other Debt Securities duly issued hereunder. All Debt Securities shall
be
held and owned upon the express condition that, to the extent permitted
by
applicable law, the foregoing provisions are exclusive with respect to
the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude any and all other rights or remedies notwithstanding
any law
or statute existing or hereafter enacted to the contrary with respect to
the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section
2.07
Temporary
Debt Securities
.
Pending
the preparation of definitive Debt Securities, the Company may execute and
the
Trustee shall authenticate and make available for delivery temporary Debt
Securities that are typed, printed or lithographed. Temporary Debt Securities
shall be issuable in any authorized denomination, and substantially in the
form
of the definitive Debt Securities but with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may
be
determined by the Company. Every such temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions
and
in substantially the same manner, and with the same effect, as the definitive
Debt Securities. Without unreasonable delay, the Company will execute and
deliver to the Trustee or the Authenticating Agent definitive Debt Securities
and thereupon any or all temporary Debt Securities may be surrendered in
exchange therefor, at the Principal Office of the Trustee or at any office
or
agency maintained by the Company for such purpose as provided in Section
3.02,
and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange for such temporary Debt Securities a like
aggregate principal amount of such definitive Debt Securities. Such exchange
shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer
the Company may require payment of a sum sufficient to cover any tax, fee
or
other governmental charge that may be imposed in relation thereto. Until
so
exchanged, the temporary Debt Securities shall in all respects be entitled
to
the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.
Section
2.08
Payment
of Interest
.
Each
Debt
Security will bear interest at the then applicable Interest Rate (i) in the
case
of the initial Interest Period, for the period from, and including, the date
of
original issuance of such Debt Security to, but excluding, the initial Interest
Payment Date and (ii) thereafter, for the period from, and including, the
first
day following the end of the preceding Interest Period to, but excluding,
the
applicable Interest Payment Date or, in the case of the last Interest Period,
the related Optional Redemption Date, Special Redemption Date or Maturity
Date,
as applicable (each such period, an “Interest Period”), on the principal
thereof, on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on Deferred Interest and on
any
overdue installment of interest (including Defaulted Interest), payable (subject
to the provisions of Article XV) on each Interest Payment Date and on the
Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as
the case may be. Interest and any Deferred Interest on any Debt Security
that is
payable, and is punctually paid or
duly
provided for by the Company, on any Interest Payment Date shall be paid
to the
Person in whose name such Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the regular record date for such
interest installment, except that interest and any Deferred Interest payable
on
the Maturity Date, any Optional Redemption Date or the Special Redemption
Date,
as the case may be, other than any Interest Payment Date shall be paid
to the
Person to whom principal is paid. In case (i) the Maturity Date
of any Debt
Security or (ii) any Debt Security or portion thereof is called
for
redemption and the related Optional Redemption Date or the Special Redemption
Date, as the case may be, is subsequent to the regular record date with
respect
to any Interest Payment Date and prior to such Interest Payment Date, interest
on such Debt Security will be paid upon presentation and surrender of such
Debt
Security.
Any
interest on any Debt Security, other than Deferred Interest, that is payable,
but is not punctually paid or duly provided for by the Company, on any Interest
Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the holder on the relevant regular record date by virtue of having
been such holder, and such Defaulted Interest shall be paid by the Company
to
the Persons in whose names such Debt Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date
for
the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debt Security and the
date
of the proposed payment, and at the same time the Company shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such Defaulted Interest or shall make arrangements reasonably
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the
Persons entitled to such Defaulted Interest as provided in this paragraph.
Thereupon the Trustee shall fix a special record date for the payment of
such
Defaulted Interest, which shall not be more than fifteen nor less than ten
days
prior to the date of the proposed payment and not less than ten days after
the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall
promptly notify the Company of such special record date and, in the name
and at
the expense of the Company, shall cause notice of the proposed payment of
such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Debt Security Register, not less than ten days prior to such
special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debt
Securities (or their respective Predecessor Securities) are registered on
such
special record date and thereafter the Company shall have no further payment
obligation in respect of the Defaulted Interest.
Any
interest scheduled to become payable on an Interest Payment Date occurring
during an Extension Period shall not be Defaulted Interest and shall be payable
on such other date as may be specified in the terms of such Debt
Securities.
The
term
“regular record date”, as used in this Section, shall mean the fifteenth day
prior to the applicable Interest Payment Date, whether or not such day is
a
Business Day.
Subject
to the foregoing provisions of this Section, each Debt Security delivered
under
this Indenture upon registration of transfer of or in exchange for or in
lieu of
any other
Debt
Security shall carry the rights to interest accrued and unpaid, and to
accrue,
that were carried by such other Debt Security.
Section
2.09
Cancellation
of Debt Securities Paid, etc
.
All
Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any Paying
Agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debt Securities shall be issued in lieu thereof except
as
expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debt Securities unless the
Company otherwise directs the Trustee in writing, in which case the Trustee
shall dispose of such Debt Securities as directed by the Company. If the
Company
shall acquire any of the Debt Securities, however, such acquisition shall
not
operate as a redemption or satisfaction of the indebtedness represented by
such
Debt Securities unless and until the same are surrendered to the Trustee
for
cancellation.
Section
2.10
Computation
of Interest
.
(a)
The
amount of interest payable on the Debt Securities will be computed (i) with
respect to any Interest Period prior to the Interest Period commencing on
the
Interest Payment Date in November, 2010, on the basis of a 360-day
year
consisting of twelve 30-day months and (ii) with respect to any Interest
Period
commencing on or after the Interest Payment Date in November, 2010,
on the
basis of a 360-day year and the actual number of days elapsed in such Interest
Period.
(b)
LIBOR
shall be determined by the Calculation Agent for each Interest Period commencing
on or after the Interest Payment Date in November, 2010 in accordance
with
the following provisions:
(i)
On
the
second LIBOR Business Day (provided, that on such day commercial banks are
open
for business (including dealings in foreign currency deposits) in London
(a
“LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Day that
is also a LIBOR Banking Day) prior to the Interest Payment Date that commences
such Interest Period (each such day, a “LIBOR Determination Date”), LIBOR shall
equal the rate, as obtained by the Calculation Agent, for three-month U.S.
Dollar deposits in Europe, which appears on Telerate (as defined in the
International Swaps and Derivatives Association, Inc. 2000 Interest Rate
and
Currency Exchange Definitions) page 3750 or such other page as may replace
such
page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date,
as
reported by Bloomberg Financial Markets Commodities News or any successor
service (“Telerate Page 3750”). “LIBOR Business Day” means any day that is not a
Saturday, Sunday or other day on which commercial banking institutions in
The
City of New York or Wilmington, Delaware are authorized or obligated by law
or
executive order to be closed. If such rate is superseded on Telerate Page
3750
by a corrected rate before 12:00 noon (London time) on such LIBOR Determination
Date, the corrected rate as so substituted will be LIBOR for such LIBOR
Determination Date.
(ii)
If,
on
such LIBOR Determination Date, such rate does not appear on Telerate Page
3750,
the Calculation Agent shall determine the arithmetic mean of the offered
quotations of the Reference Banks to leading banks in the London interbank
market for three-month U.S. Dollar deposits in Europe (in an amount determined
by the Calculation Agent) by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on such LIBOR Determination Date made
by
the Calculation Agent to the Reference Banks. If, on such LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR
shall
equal the arithmetic mean of such quotations. If, on such LIBOR Determination
Date, only one or none of the Reference Banks provide such a quotation, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that
at
least two leading banks in The City of New York (as selected by the Calculation
Agent) are quoting on such LIBOR Determination Date for three-month U.S.
Dollar
deposits in Europe at approximately 11:00 a.m. (London time) (in an amount
determined by the Calculation Agent). As used herein, “Reference Banks” means
four major banks in the London interbank market selected by the Calculation
Agent.
(iii)
If
the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for such Interest
Period shall be LIBOR in effect for the immediately preceding Interest
Period.
(c)
All
percentages resulting from any calculations on the Debt Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded
to the
nearest cent (with one-half cent being rounded upward).
(d)
On
each
LIBOR Determination Date, the Calculation Agent shall notify, in writing,
the
Company and the Paying Agent of the applicable Interest Rate that applies
to the
related Interest Period. The Calculation Agent shall, upon the request of
a
holder of any Debt Securities, inform such holder of the Interest Rate that
applies to the related Interest Period. All calculations made by the Calculation
Agent in the absence of manifest error shall be conclusive for all purposes
and
binding on the Company and the holders of the Debt Securities. The Paying
Agent
shall be entitled to rely on information received from the Calculation Agent
or
the Company as to the applicable Interest Rate. The Company shall, from time
to
time, provide any necessary information to the Paying Agent relating to any
original issue discount and interest on the Debt Securities that is included
in
any payment and reportable for taxable income calculation purposes.
Section
2.11
Extension
of Interest Payment Period
.
So
long
as no Event of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or
(i)
of this Indenture has occurred and is continuing, the Company shall have
the
right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the
term
of the Debt Securities, for up to 20 consecutive quarterly periods (each
such
extended interest payment period, together with all previous and further
consecutive extensions thereof, is referred to herein as an “Extension Period”).
No Extension Period may end on a date
other
than an Interest Payment Date or extend beyond the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be. During
any
Extension Period, interest will continue to accrue on the Debt Securities,
and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as “Deferred Interest”) will accrue at an annual rate equal
to the Interest Rate applicable during such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were
it
not for the Extension Period, to the extent permitted by applicable law.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at the
end
thereof. At the end of any Extension Period, the Company shall pay all Deferred
Interest then accrued and unpaid on the Debt Securities;
provided
,
however
,
that
during any Extension Period, the Company shall be subject to the restrictions
set forth in Section 3.08. Prior to the termination of any Extension Period,
the
Company may further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the Company may commence a new Extension Period, subject
to the foregoing requirements. The Company must give the Trustee notice of
its
election to begin or extend an Extension Period no later than the close of
business on the fifteenth Business Day prior to the applicable Interest Payment
Date. The Trustee shall give notice of the Company’s election to begin or extend
an Extension Period to the Securityholders, promptly after receipt of notice
from the Company of its election to begin or extend an Extension
Period.
Section
2.12
CUSIP
Numbers
.
The
Company in issuing the Debt Securities may use a “CUSIP” number (if then
generally in use), and, if so, the Trustee shall use a “CUSIP” number in notices
of redemption as a convenience to Securityholders;
provided
,
that
any such notice may state that no representation is made as to the correctness
of such number either as printed on the Debt 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 Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP
number.
Section
2.13
Global
Debentures
.
(a)
Upon
the
election of an owner of beneficial interests in outstanding Debt Securities,
the
Debt Securities owned by such beneficial owner shall be issued in the form
of
one or more Global Debentures. Each Global Debenture issued under this Indenture
shall be registered in the name of the Depositary designated by the Company
for
such Global Debenture or a nominee of such Depositary and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debt Security for all purposes of this
Indenture.
(b)
Notwithstanding
any other provision in this Indenture, no Global Debenture may be exchanged
in
whole or in part for Debt Securities in certificated form, and no transfer
of a
Global Debenture in whole or in part may be, registered in the name of any
Person
other
than the Depositary for such Global Debenture or a nominee thereof unless
(i)
such Depositary advises the Trustee and the Company in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Debenture, and
no
qualified successor is appointed by the Company within ninety (90) days
of
receipt by the Company of such notice, (ii) such Depositary ceases to be
a
clearing agency registered under the Exchange Act and no successor is appointed
by the Company within ninety (90) days after obtaining knowledge of such
event
or (iii) an Event of Default shall have occurred and be continuing. Upon
obtaining knowledge of the occurrence of any event specified in clause
(i), (ii)
or (iii) above, the Trustee shall notify the Depositary and instruct the
Depositary to notify all owners of beneficial interests in such Global
Debenture
of the occurrence of such event and of the availability of Debt Securities
in
certificated form to such beneficial owners requesting the same. Upon the
issuance of such Debt Securities in certificated form and the registration
in
the Debt Security Register of such Debt Securities in the names of the
holders
thereof, the Trustee shall recognize such holders as holders of Debt Securities
for all purposes of this Indenture and the Debt Securities.
(c)
If
any
Global Debenture is to be exchanged for Debt Securities in certificated form
or
canceled in part, or if a Debt Security in certificated form is to be exchanged
in whole or in part for a beneficial interest in any Global Debenture, then
either (i) such Global Debenture shall be so surrendered for exchange or
cancellation as provided herein or (ii) the principal amount thereof shall
be
reduced or increased, subject to Section 2.03, by an amount equal to the
portion
thereof to be so exchanged or canceled, or equal to the principal amount
of such
Debt Security to be so exchanged for a beneficial interest therein, as the
case
may be, by means of an appropriate adjustment made on the records of the
Debt
Security registrar, whereupon the Trustee, in accordance with the Applicable
Depositary Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any
such
surrender or adjustment of a Global Debenture by the Depositary, accompanied
by
registration instructions, the Company shall execute and the Trustee shall
authenticate and deliver Debt Securities issuable in exchange for such Global
Debenture (or any portion thereof) in accordance with the instructions of
the
Depositary. The Trustee may conclusively rely on, and shall be fully protected
in relying on, such instructions.
(d)
Every
Debt Security authenticated and delivered upon registration of transfer of,
or
in exchange for or in lieu of, a Global Debenture or any portion thereof
shall
be authenticated and delivered in the form of, and shall be, a Global Debenture,
unless such Debt Security is registered in the name of a Person other than
the
Depositary for such Global Debenture or a nominee thereof.
(e)
Debt
Securities distributed to holders of Book-Entry Capital Securities (as defined
in the Declaration) upon the dissolution of the Trust shall be distributed
in
the form of one or more Global Debentures registered in the name of the
Depositary or its nominee, and deposited with the Debt Securities registrar,
as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the owners of beneficial interests in such Book-Entry Capital
Securities. Debt Securities distributed to holders of Capital Securities
in
certificated form upon the dissolution of the Trust shall be issued in
certificated form.
(f)
The
Depositary or its nominee, as the registered owner of a Global Debenture,
shall
be the holder of such Global Debenture for all purposes under this Indenture
and
the Debt Securities, and owners of beneficial interests in a Global Debenture
shall hold such interests pursuant to the Applicable Depositary Procedures.
Accordingly, any such owner’s beneficial interest in a Global Debenture shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Depositary
Participants. The Debt Securities registrar and the Trustee shall be entitled
to
deal with the Depositary for all purposes of this Indenture relating to a
Global
Debenture as the sole holder of the Debt Security and shall have no obligation
to any beneficial owner of a Global Debenture. Neither the Trustee nor the
Debt
Securities registrar shall have any liability in respect of any transfers
affected by the Depositary or its Depositary Participants.
(g)
The
rights of owners of beneficial interests in a Global Debenture shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such owners and the Depositary and/or its
Depositary Participants.
(h)
No
owner
of any beneficial interest in any Global Debenture shall have any rights
under
this Indenture with respect to such Global Debenture, and the Depositary
may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner and holder of such Global Debenture for all purposes under the
Indenture. None of the Company, the Trustee nor any agent of the Company
or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests
in a
Global Debenture or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company
or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and such beneficial owners, the operation of customary practices governing
the
exercise of the rights of the Depositary or its nominee as holder of any
Debt
Security.
(i)
Global
Debentures shall bear the following legend on the face thereof:
THIS
SECURITY IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN
THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE
III
PARTICULAR
COVENANTS OF THE COMPANY
Section
3.01
Payment
of Principal, Premium and Interest; Agreed Treatment of the Debt
Securities
.
(a)
The
Company covenants and agrees that it will duly and punctually pay or cause
to be
paid all payments due in respect of the Debt Securities at the place, at
the
respective times and in the manner provided in this Indenture and the Debt
Securities. Payment of the principal of and premium, if any, and interest
on the
Debt Securities due on the Maturity Date, any Optional Redemption Date or
the
Special Redemption Date, as the case may be, will be made by the Company
in
immediately available funds against presentation and surrender of such Debt
Securities. At the option of the Company, each installment of interest on
the
Debt Securities due on an Interest Payment Date other than the Maturity Date,
any Optional Redemption Date or the Special Redemption Date, as the case
may be,
may be paid (i) by mailing checks for such interest payable to the order
of the
holders of Debt Securities entitled thereto as they appear on the Debt Security
Register or (ii) by wire transfer of immediately available funds to any account
with a banking institution located in the United States designated by such
holders to the Paying Agent no later than the related record date.
Notwithstanding anything to the contrary contained in this Indenture or any
Debt
Security, if the Trust or the trustee of the Trust is the holder of any Debt
Security, then all payments in respect of such Debt Security shall be made
by
the Company in immediately available funds when due.
(b)
The
Company will treat the Debt Securities as indebtedness, and the interest
payable
in respect of such Debt Securities (including any Additional Amounts) as
interest, for all U.S. federal income tax purposes. All payments in respect
of
such Debt Securities will be made free and clear of U.S. withholding tax
provided, that (i) any beneficial owner thereof that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code (A) has provided an
Internal Revenue Service Form W-9 (or any substitute or successor form) in
the
manner required establishing its status as a “United States person” for U.S.
federal income tax purposes, and (B) the Internal Revenue Service has neither
notified the Issuer that the taxpayer identification number furnished by
such
beneficial owner is incorrect nor notified the Issuer that there is
underreporting by such beneficial owner, and (ii) any beneficial owner thereof
that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code has provided an Internal Revenue Service Form W-8 BEN, Internal
Revenue Service Form W-8ECI, or Internal Revenue Service Form W-8EXP, as
applicable (or any substitute or successor form) in the manner required
establishing its non-U.S. status for U.S. federal income tax
purposes.
(c)
As
of the
date of this Indenture, the Company represents that it has no intention to
exercise its right under Section 2.11 to defer payments of interest on the
Debt
Securities by commencing an Extension Period.
(d)
As
of the
date of this Indenture, the Company represents that the likelihood that it
would
exercise its right under Section 2.11 to defer payments of interest on the
Debt
Securities by commencing an Extension Period at any time during which the
Debt
Securities are outstanding is remote because of the restrictions that would
be
imposed on the Company’s ability to declare or pay dividends or distributions
on, or to redeem, purchase or make a liquidation payment with respect to,
any of
its outstanding equity and on the Company’s ability to make any payments of
principal of or premium, if any, or interest on, or repurchase or redeem,
any of
its debt securities that rank
pari
passu
in all
respects with or junior in interest to the Debt Securities.
Section
3.02
Offices
for Notices and Payments, etc
.
So
long
as any of the Debt Securities remain outstanding, the Company will maintain
in
Wilmington, Delaware or in Providence, Rhode Island an office or agency where
the Debt Securities may be presented for payment, an office or agency where
the
Debt Securities may be presented for registration of transfer and for exchange
as provided in this Indenture and an office or agency where notices and demands
to or upon the Company in respect of the Debt Securities or of this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to
the
Trustee, or specified as contemplated by Section 2.05, such office or agency
for
all of the above purposes shall be the Principal Office of the Trustee. In
case
the Company shall fail to maintain any such office or agency in Wilmington,
Delaware or in Providence, Rhode Island, or shall fail to give such notice
of
the location or of any change in the location thereof, presentations and
demands
may be made and notices may be served at the Principal Office of the
Trustee.
In
addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside Wilmington, Delaware or
Providence, Rhode Island where the Debt Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation,
as
the Company may deem desirable or expedient;
provided
,
however
,
that no
such designation or rescission shall in any manner relieve the Company of
its
obligation to maintain any such office or agency in Wilmington, Delaware
or in
Providence, Rhode Island for the purposes above mentioned. The Company will
give
to the Trustee prompt written notice of any such designation or rescission
thereof.
Section
3.03
Appointments
to Fill Vacancies in Trustee’s Office
.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.09, a Trustee, so that
there
shall at all times be a Trustee hereunder.
Section
3.04
Provision
as to Paying Agent
.
(a)
If
the
Company shall appoint a Paying Agent other than the Trustee, it will cause
such
Paying Agent to execute and deliver to the Trustee an instrument in which
such
agent shall agree with the Trustee, subject to the provision of this Section
3.04,
(i)
that
it
will hold all sums held by it as such agent for the payment of all payments
due
on the Debt Securities (whether such sums have been paid to it by the Company
or
by any other obligor on the Debt Securities) in trust for the benefit of
the
holders of the Debt Securities;
(ii)
that
it
will give the Trustee prompt written notice of any failure by the Company
(or by
any other obligor on the Debt Securities) to make any payment on the Debt
Securities when the same shall be due and payable; and
(iii)
that
it
will, at any time during the continuance of any Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in
trust by such Paying Agent.
(b)
If
the
Company shall act as its own Paying Agent, it will, on or before each due
date
of the payments due on the Debt Securities, set aside, segregate and hold
in
trust for the benefit of the holders of the Debt Securities a sum sufficient
to
make such payments so becoming due and will notify the Trustee in writing
of any
failure to take such action and of any failure by the Company (or by any
other
obligor under the Debt Securities) to make any payment on the Debt Securities
when the same shall become due and payable.
Whenever
the Company shall have one or more Paying Agents for the Debt Securities,
it
will, on or prior to each due date of the payments on the Debt Securities,
deposit with a Paying Agent a sum sufficient to pay all payments so becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee in writing of its action or failure to act.
(c)
Anything
in this Section 3.04 to the contrary notwithstanding, the Company may, at
any
time, for the purpose of obtaining a satisfaction and discharge with respect
to
the Debt Securities, or for any other reason, pay, or direct any Paying Agent
to
pay, to the Trustee all sums held in trust by the Company or any such Paying
Agent, such sums to be held by the Trustee upon the same terms and conditions
herein contained.
(d)
Anything
in this Section 3.04 to the contrary notwithstanding, the agreement to hold
sums
in trust as provided in this Section 3.04 is subject to Sections 12.03 and
12.04.
(e)
The
Company hereby initially appoints the Trustee to act as paying agent for
the
Debt Securities (the “Paying Agent”).
Section
3.05
Certificate
to Trustee
.
The
Company will deliver to the Trustee on or before 120 days after the end of
each
fiscal year, so long as Debt Securities are outstanding hereunder, a
Certificate, substantially in the form of Exhibit B attached hereto, stating
that in the course of the performance by the signers of their duties as officers
of the Company they would normally have knowledge of any default by the Company
in the performance of any covenants of the Company contained herein, stating
whether or not they have knowledge of any such default and, if so, specifying
each such default of which the signers have knowledge and the nature
thereof.
Section
3.06
Additional
Amounts
.
If
and
for so long as the Trust is the holder of all Debt Securities and is subject
to
or otherwise required to pay (or is required to withhold from distributions
to
holders of Trust Securities) any additional taxes (including withholding
taxes),
duties, assessments or other governmental charges as a result of a Tax Event,
the Company will pay such additional amounts (the “Additional Amounts”) on the
Debt Securities or the Trust Securities, as the case may be, as shall be
required so that the net amounts received and retained by the holders of
Debt
Securities or Trust Securities, as the case may be, after payment of all
taxes
(including withholding taxes), duties, assessments or other governmental
charges, will be equal to the amounts that such holders would have received
and
retained had no such taxes (including withholding taxes), duties, assessments
or
other governmental charges been imposed.
Whenever
in this Indenture or the Debt Securities there is a reference in any context
to
the payment of principal of or premium, if any, or interest on the Debt
Securities, such mention shall be deemed to include mention of payments of
the
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment
of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such
express mention is not made,
provided
,
however
,
that,
notwithstanding anything to the contrary contained in this Indenture or any
Debt
Security, the deferral of the payment of interest during an Extension Period
pursuant to Section 2.11 shall not defer the payment of any Additional Amounts
that may be due and payable.
Section
3.07
Compliance
with Consolidation Provisions
.
The
Company will not, while any of the Debt Securities remain outstanding,
consolidate with, or merge into, any other Person, or merge into itself,
or
sell, convey, transfer or otherwise dispose of all or substantially all of
its
property or capital stock to any other Person unless the provisions of Article
XI hereof are complied with.
Section
3.08
Limitation
on Dividends
.
If
(i)
there shall have occurred and be continuing a Default or an Event of Default,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the Company shall
have given notice of its election to defer
payments
of interest on the Debt Securities by extending the interest payment period
as
provided herein and such period, or any extension thereof, shall have commenced
and be continuing, then the Company may not (A) declare or pay any dividends
or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock, (B) make any payment of
principal of or premium, if any, or interest on or repay, repurchase or
redeem
any debt securities of the Company that rank
pari
passu
in
all
respects with or junior in interest to the Debt Securities or (C) make
any
payment under any guarantees of the Company that rank
pari
passu
in
all
respects with or junior in interest to the Capital Securities Guarantee
(other
than (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company (I) in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, (II) in connection with
a
dividend reinvestment or stockholder stock purchase plan or (III) in connection
with the issuance of capital stock of the Company (or securities convertible
into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of (i), (ii) or (iii)
above,
(b) as a result of any exchange or conversion of any class or series of
the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or series
of the Company’s indebtedness for any class or series of the Company’s capital
stock, (c) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such
capital
stock or the security being converted or exchanged, (d) any declaration
of a
dividend in connection with any stockholder’s rights plan, or the issuance of
rights, stock or other property under any stockholder’s rights plan, or the
redemption or repurchase of rights pursuant thereto or (e) any dividend
in the
form of stock, warrants, options or other rights where the dividend stock
or the
stock issuable upon exercise of such warrants, options or other rights
is the
same stock as that on which the dividend is being paid or ranks
pari
passu
with or
junior in interest to such stock).
Section
3.09
Covenants
as to the Trust
.
For
so
long as such Trust Securities remain outstanding, the Company shall maintain
100% ownership of the Common Securities;
provided
,
however
,
that
any permitted successor of the Company under this Indenture may succeed to
the
Company’s ownership of such Common Securities. The Company, as owner of the
Common Securities, shall use commercially reasonable efforts to cause the
Trust
(a) to remain a statutory trust, except in connection with a distribution
of
Debt Securities to the holders of Trust Securities in liquidation of the
Trust,
the redemption of all of the Trust Securities or mergers, consolidations
or
amalgamations, each as permitted by the Declaration, (b) to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debt Securities.
ARTICLE
IV
LISTS
Section
4.01
Securityholders’
Lists
.
The
Company covenants and agrees that it will furnish or cause to be furnished
to
the Trustee:
(a)
on
each
regular record date for an Interest Payment Date, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the
Securityholders of the Debt Securities as of such record date; and
(b)
at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
except that no such lists need be furnished under this Section 4.01 so long
as
the Trustee is in possession thereof by reason of its acting as Debt Security
registrar.
Section
4.02
Preservation
and Disclosure of Lists
.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the holders of Debt Securities
(1)
contained in the most recent list furnished to it as provided in Section
4.01 or
(2) received by it in the capacity of Debt Securities registrar (if so acting)
hereunder. The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b)
In
case
three or more holders of Debt Securities (hereinafter referred to as
“applicants”) apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a
period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debt Securities with respect to their rights under this Indenture or under
such Debt Securities and is accompanied by a copy of the form of proxy or
other
communication which such applicants propose to transmit, then the Trustee
shall
within five Business Days after the receipt of such application, at its
election, either:
(i)
afford
such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section 4.02,
or
(ii)
inform
such applicants as to the approximate number of holders of Debt Securities
whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing to such Securityholders the
form
of proxy or other communication, if any, specified in such
application.
If
the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
Securityholder of Debt Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02 a copy of the form of proxy
or
other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission, if permitted
or
required by applicable law, together with a copy of the material to be mailed,
a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary
to
the
best interests of the holders of all Debt Securities, as the case may be,
or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If said Commission, as permitted or required
by
applicable law, after opportunity for a hearing upon the objections specified
in
the written statement so filed, shall enter an order refusing to sustain
any of
such objections or if, after the entry of an order sustaining one or more
of
such objections, said Commission shall find, after notice and opportunity
for
hearing, that all the objections so sustained have been met and shall enter
an
order so declaring, the Trustee shall mail copies of such material to all
such
Securityholders with reasonable promptness after the entry of such order
and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their
application.
(c)
Each
and
every holder of Debt Securities, by receiving and holding the same, agrees
with
the Company and the Trustee that none of the Company, the Trustee or any
Paying
Agent shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Debt Securities
in
accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that
the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
Section
4.03
Financial
and Other Information
.
(a)
The
Company shall deliver, by hardcopy or electronic transmission, to each
Securityholder (i) each Report on Form 10-K and Form 10-Q, if any, prepared
by
the Company and filed with the Securities and Exchange Commission in accordance
with the Exchange Act within 10 Business Days after the filing thereof or
(ii)
if the Company is (a) not then subject to Section 13 or 15(d) of the Exchange
Act (a “Private Entity”) or (b) exempt from reporting pursuant to Rule 12g3-2(b)
thereunder, the information required by Rule 144A(d)(4) under the Securities
Act. Notwithstanding the foregoing, so long as a Holder of the Debt Securities
is Greenwich Capital Financial Products, Inc. or an entity that holds a pool
of
trust preferred securities and/or debt securities as collateral for its
securities or a trustee thereof, and the Company is (i) a Private Entity
that,
on the date of original issuance of the Debt Securities, is required to provide
audited consolidated financial statements to its primary regulatory authority,
(ii) a Private Entity that, on the date of original issuance of the Debt
Securities, is not required to provide audited consolidated financial statements
to its primary regulatory authority but subsequently becomes subject to the
audited consolidated financial statement reporting requirements of that
regulatory authority or (iii) subject to Section 13 or 15(d) of the Exchange
Act
on the date of original issuance of the Debt Securities or becomes so subject
after the date hereof but subsequently becomes a Private Entity, then, within
90
days after the end of each fiscal year, beginning with the fiscal year in
which
the Debt Securities were originally issued if the Company was then subject
to
(x) Section 13 or 15(d) of the Exchange Act or (y) audited consolidated
financial statement reporting requirements of its primary regulatory authority
or, otherwise, the earliest fiscal year in which the Company becomes subject
to
(1) Section 13 or 15(d) of the Exchange Act or (2) the audited consolidated
financial statement reporting requirements of its primary regulatory authority,
the Company shall deliver, by hardcopy or electronic transmission, to each
Securityholder, unless otherwise provided pursuant to the preceding sentence,
(A) a copy of the Company’s audited consolidated financial statements
(including
balance sheet and income statement) covering the related annual period
and (B)
the report of the independent accountants with respect to such financial
statements. In addition to the foregoing, the Company shall deliver to
each
Securityholder within 30 days after the end of the fiscal year of the Company,
Form 1099 or such other annual U.S. federal income tax information statement
required by the Code containing such information with regard to the Debt
Securities held by such holder as is required by the Code and the income
tax
regulations of the U.S. Treasury thereunder.
(b)
If
and so
long as the Holder of the Debt Securities is Greenwich Capital Financial
Products, Inc. or an entity that holds a pool of trust preferred securities
and/or debt securities or a trustee thereof, the Company will cause copies
of
its reports on Forms FR Y-9C, FR Y-9LP to be delivered to such Holder promptly
following their filing with the Federal Reserve.
ARTICLE
V
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
Section
5.01
Events
of Default
.
The
following events shall be “Events of Default” with respect to Debt
Securities:
(a)
the
Company defaults in the payment of any interest upon any Debt Security when
it
becomes due and payable, and continuance of such default for a period of
30
days; for the avoidance of doubt, an extension of any interest payment period
by
the Company in accordance with Section 2.11 of this Indenture shall not
constitute a default under this clause 5.01(a); or
(b)
the
Company defaults in the payment of any interest upon any Debt Security,
including any Additional Amounts in respect thereof, following the nonpayment
of
any such interest for twenty or more consecutive Interest Periods;
or
(c)
the
Company defaults in the payment of all or any part of the principal of (or
premium, if any, on) any Debt Securities as and when the same shall become
due
and payable, whether at maturity, upon redemption, by acceleration of maturity
pursuant to Section 5.01 of this Indenture or otherwise; or
(d)
the
Company defaults in the performance of, or breaches, any of its covenants
or
agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other
than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in aggregate principal
amount of the outstanding Debt 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)
a
court
having jurisdiction in the premises shall enter a decree or order for relief
in
respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official of the Company or for any substantial part of its property,
or
orders the winding-up or liquidation of its affairs and such decree, appointment
or order shall remain unstayed and in effect for a period of 90 consecutive
days; or
(f)
the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent
to the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Company or of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
(g)
a
court
or administrative or governmental agency or body shall enter a decree or
order
for the appointment of a receiver of a Major Depository Institution Subsidiary
or all or substantially all of its property in any liquidation, insolvency
or
similar proceeding with respect to such Major Depository Institution Subsidiary
or all or substantially all of its property; or
(h)
a
Major
Depository Institution Subsidiary shall consent to the appointment of a receiver
for it or all or substantially all of its property in any liquidation,
insolvency or similar proceeding with respect to it or all or substantially
all
of its property; or
(i)
the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with
(1) the
distribution of the Debt Securities to holders of the Trust Securities in
liquidation of their interests in the Trust, (2) the redemption of all of
the
outstanding Trust Securities or (3) mergers, consolidations or amalgamations,
each as permitted by the Declaration.
If
an
Event of Default specified under clause (b) of this Section 5.01 occurs and
is
continuing with respect to the Debt Securities, then, in each and every such
case, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding hereunder, by notice
in
writing to the Company (and to the Trustee if given by Securityholders),
may
declare the entire principal of the Debt Securities and any premium and interest
accrued, but unpaid, thereon to be due and payable immediately, and upon
any
such declaration the same shall become immediately due and payable. If an
Event
of Default specified under clause (e), (f), (g), (h) or (i) of this Section
5.01
occurs, then, in each and every such case, the entire principal amount of
the
Debt Securities and any premium and interest accrued, but unpaid, thereon
shall
ipso
facto
become
immediately due and payable without further action.
The
foregoing provisions, however, are subject to the condition that if, at any
time
after the principal of the Debt Securities shall have become due by
acceleration, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as
hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a
sum
sufficient to pay all matured installments of interest upon all the Debt
Securities and all payments on the Debt Securities which shall have become
due
otherwise than by acceleration (with interest upon all such payments and
Deferred Interest, to the extent permitted by law) and such amount as shall
be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and all other
amounts
due to the Trustee pursuant to Section 6.06, if any, and (ii) all Events
of
Default under this Indenture, other than the non-payment of the payments
in
respect of Debt Securities which shall have become due by acceleration,
shall
have been cured, waived or otherwise remedied as provided herein, then,
in each
and every such case, the holders of a majority in aggregate principal amount
of
the Debt Securities then outstanding, by written notice to the Company
and to
the Trustee, may waive all defaults and rescind and annul such acceleration
and
its consequences, but no such waiver or rescission and annulment shall
extend to
or shall affect any subsequent default or shall impair any right consequent
thereon;
provided
,
however
,
that if
the Debt Securities are held by the Trust or a trustee of the Trust, such
waiver
or rescission and annulment shall not be effective until the holders of
a
majority in aggregate liquidation amount of the outstanding Capital Securities
of the Trust shall have consented to such waiver or rescission and
annulment.
In
case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the holders of the Debt Securities shall be restored respectively to
their
several positions and rights hereunder, and all rights, remedies and powers
of
the Company, the Trustee and the holders of the Debt Securities shall continue
as though no such proceeding had been taken.
Section
5.02
Payment
of Debt Securities on Default; Suit Therefor
.
The
Company covenants that upon the occurrence of an Event of Default pursuant
to
clause (b) of Section 5.01 and upon demand of the Trustee, the Company will
pay
to the Trustee, for the benefit of the holders of the Debt Securities, the
whole
amount that then shall have become due and payable on all Debt Securities,
including Deferred Interest accrued on the Debt Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee,
its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.06. In case the Company shall fail forthwith to pay such amounts
upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any
such judgment or final decree against the Company or any other obligor on
such
Debt Securities and collect in the manner provided by law out of the property
of
the Company or any other obligor on such Debt Securities wherever situated
the
moneys adjudged or decreed to be payable.
In
case
there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debt Securities under Bankruptcy
Law,
or in case a receiver or trustee shall have been appointed for the property
of
the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the
Company
or other obligor upon the Debt Securities, or to the creditors or property
of
the Company or such other obligor, the Trustee, irrespective of whether
the
principal of the Debt Securities shall then be due and payable as therein
expressed or by acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
5.02, shall be entitled and empowered, by intervention in such proceedings
or
otherwise, to file and prove a claim or claims for the whole amount of
principal
and interest owing and unpaid in respect of the Debt Securities and, in
case of
any judicial proceedings, to file such proofs of claim and other papers
or
documents as may be necessary or advisable in order to have the claims
of the
Trustee (including any claim for reasonable compensation to the Trustee
and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for
reimbursement of all other amounts due to the Trustee under Section 6.06)
and of
the Securityholders allowed in such judicial proceedings relative to the
Company
or any other obligor on the Debt Securities, or to the creditors or property
of
the Company or such other obligor, unless prohibited by applicable law
and
regulations, to vote on behalf of the holders of the Debt Securities in
any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and to collect and receive
any
moneys or other property payable or deliverable on any such claims, and
to
distribute the same after the deduction of its charges and expenses; and
any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the
Trustee,
and, in the event that the Trustee shall consent to the making of such
payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.06.
Nothing
herein contained shall be construed to authorize the Trustee to authorize
or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any holder thereof or to authorize the Trustee
to
vote in respect of the claim of any Securityholder in any such
proceeding.
All
rights of action and of asserting claims under this Indenture, or under any
of
the Debt Securities, may be enforced by the Trustee without the possession
of
any of the Debt Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the
Trustee shall be brought in its own name as trustee of an express trust,
and any
recovery of judgment shall be for the ratable benefit of the holders of the
Debt
Securities.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall
be
a party), the Trustee shall be held to represent all the holders of the Debt
Securities, and it shall not be necessary to make any holders of the Debt
Securities parties to any such proceedings.
Section
5.03
Application
of Moneys Collected by Trustee
.
Any
moneys collected by the Trustee shall be applied in the following order,
at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of
the
several Debt Securities in respect of which moneys have been collected,
and
stamping thereon the payment, if only partially paid, and upon surrender
thereof
if fully paid:
First:
To
the payment of costs and expenses incurred by, and reasonable fees of, the
Trustee, its agents, attorneys and counsel, and of all other amounts due
to the
Trustee under Section 6.06;
Second:
To the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XV;
Third:
To
the payment of the amounts then due and unpaid upon Debt Securities, in respect
of which or for the benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due upon such
Debt
Securities; and
Fourth:
The balance, if any, to the Company.
Section
5.04
Proceedings
by Securityholders
.
No
holder
of any Debt Security shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall
have
given to the Trustee written notice of an Event of Default with respect to
the
Debt Securities and unless the holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding shall have given
the
Trustee a written request to institute such action, suit or proceeding and
shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred thereby, and the Trustee
for
60 days after its receipt of such notice, request and offer of indemnity
shall
have failed to institute any such action, suit or proceeding;
provided
,
that no
holder of Debt Securities shall have any right to prejudice the rights of
any
other holder of Debt Securities, obtain priority or preference over any other
such holder or enforce any right under this Indenture except in the manner
herein provided and for the equal, ratable and common benefit of all holders
of
Debt Securities.
Notwithstanding
any other provisions in this Indenture, the right of any holder of any Debt
Security to receive payment of the principal of and premium, if any, and
interest on such Debt Security when due, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without
the
consent of such holder. For the protection and enforcement of the provisions
of
this Section, each and every Securityholder and the Trustee shall be entitled
to
such relief as can be given either at law or in equity.
Section
5.05
Proceedings
by Trustee
.
In
case
of an Event of Default, the Trustee may in its discretion proceed to protect
and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any
of such rights, either by suit in equity or by action at law or by proceeding
in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section
5.06
Remedies
Cumulative and Continuing
.
Except
as
otherwise provided in Section 2.06, all powers and remedies given by this
Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and
remedies available to the Trustee or the holders of the Debt Securities,
by
judicial proceedings or otherwise, to enforce the performance or observance
of
the covenants and agreements contained in this Indenture or otherwise
established with respect to the Debt Securities, and no delay or omission
of the
Trustee or of any holder of any of the Debt Securities to exercise any right
or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver
of
any such default or an acquiescence therein; and, subject to the provisions
of
Section 5.04, every power and remedy given by this Article V or by law to
the
Trustee or to the Securityholders may be exercised from time to time, and
as
often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section
5.07
Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders
.
The
holders of a majority in aggregate principal amount of the Debt Securities
affected at the time outstanding and, if the Debt Securities are held by
the
Trust or a trustee of the Trust, the holders of a majority in aggregate
liquidation amount of the outstanding Capital Securities of the Trust shall
have
the right to direct the time, method and place of conducting any proceeding
for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such Debt Securities;
provided
,
however
,
that if
the Debt Securities are held by the Trust or a trustee of the Trust, such
time,
method and place or such exercise, as the case may be, may not be so directed
until the holders of a majority in aggregate liquidation amount of the
outstanding Capital Securities of the Trust shall have directed such time,
method and place or such exercise, as the case may be;
provided
,
further
,
that
(subject to the provisions of Section 6.01) the Trustee shall have the right
to
decline to follow any such direction if the Trustee shall determine that
the
action so directed would be unjustly prejudicial to the holders not taking
part
in such direction or if the Trustee being advised by counsel determines that
the
action or proceeding so directed may not lawfully be taken or if a Responsible
Officer of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability. Prior to any
declaration of acceleration, or
ipso
facto
acceleration, of the maturity of the Debt Securities, the holders of a majority
in aggregate principal amount of the Debt Securities at the time outstanding
may
on behalf of the holders of all of the Debt Securities waive (or modify any
previously granted waiver of) any past Default or Event of Default and its
consequences, except a default (a) in the payment of principal of or premium,
if
any, or interest on any of the Debt Securities, (b) in respect of covenants
or
provisions hereof which cannot be modified or amended without the consent
of the
holder of each Debt Security affected, or (c) in respect of the covenants
contained in Section 3.09;
provided
,
however
,
that if
the Debt Securities are held by the Trust or a trustee of the Trust, such
waiver
or modification to such waiver shall not be effective until the holders of
a
majority in aggregate liquidation amount of the outstanding Capital Securities
of the Trust shall have consented to such waiver or modification to such
waiver;
provided
,
further
,
that if
the consent of the holder of each outstanding Debt Security is required,
such
waiver or modification to such waiver shall not be effective until each holder
of
the
outstanding Capital Securities of the Trust shall have consented to such
waiver
or modification to such waiver. Upon any such waiver or modification to
such
waiver, the Default or Event of Default covered thereby shall be deemed
to be
cured for all purposes of this Indenture and the Company, the Trustee and
the
holders of the Debt Securities shall be restored to their former positions
and
rights hereunder, respectively; but no such waiver or modification to such
waiver shall extend to any subsequent or other Default or Event of Default
or
impair any right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section, said Default
or
Event of Default shall for all purposes of the Debt Securities and this
Indenture be deemed to have been cured and to be not
continuing.
Section
5.08
Notice
of Defaults
.
The
Trustee shall, within 90 days after a Responsible Officer of the Trustee
shall
have actual knowledge or received written notice of the occurrence of a default
with respect to the Debt Securities, mail to all Securityholders, as the
names
and addresses of such holders appear upon the Debt Security Register, notice
of
all defaults with respect to the Debt Securities known to the Trustee, unless
such defaults shall have been cured before the giving of such notice (the
term
“default” for the purpose of this Section is hereby defined to be any event
specified in Section 5.01, not including periods of grace, if any, provided
for
therein);
provided
,
that
,
except
in the case of default in the payment of the principal of or premium, if
any, or
interest on any of the Debt Securities, the Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Securityholders.
Section
5.09
Undertaking
to Pay Costs.
All
parties to this Indenture agree, and each holder of any Debt Security by
such
holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such
suit
of an undertaking to pay the costs of such suit, and that such court may
in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but
the provisions of this Section shall not apply to any suit instituted by
the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount
of
the outstanding Debt Securities (or, if such Debt Securities are held by
the
Trust or a trustee of the Trust, more than 10% in liquidation amount of the
outstanding Capital Securities), to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or premium, if any,
or
interest on any Debt Security against the Company on or after the same shall
have become due and payable or to any suit instituted in accordance with
Section
14.12.
ARTICLE
VI
CONCERNING
THE TRUSTEE
Section
6.01
Duties
and Responsibilities of Trustee
.
With
respect to the holders of Debt Securities issued hereunder, the Trustee,
prior
to the occurrence of an Event of Default with respect to the Debt Securities
and
after the curing or waiving of all Events of Default which may have occurred,
with respect to the Debt Securities, undertakes to perform such duties and
only
such duties as are specifically set forth in this Indenture. In case an Event
of
Default with respect to the Debt Securities has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct or bad faith, except that:
(a)
prior
to
the occurrence of an Event of Default and after the curing or waiving of
all
Events of Default which may have occurred:
(i)
the
duties and obligations of the Trustee with respect to the Debt Securities
shall
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations with respect to the Debt Securities as are specifically set forth
in
this Indenture, and no implied covenants or obligations shall be read into
this
Indenture against the Trustee; and
(ii)
in
the
absence of bad faith on the part of the Trustee, the 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 Trustee
and conforming to the requirements of this Indenture; but, in the case of
any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to
examine the same to determine whether or not they conform on their face to
the
requirements of this Indenture;
(b)
the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer or Officers of the Trustee, unless it shall be proved
that
the Trustee was negligent in ascertaining the pertinent facts;
(c)
the
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
Securityholders pursuant to Section 5.07, relating to the time, method and
place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
(d)
the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Debt Securities unless either (1) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Company or any other obligor on the Debt Securities or by any holder
of
the Debt Securities, except that the Trustee shall be deemed to have knowledge
of any Event of Default pursuant to Sections 5.01(a), 5.01(b) or 5.01(c)
hereof
(other than an Event of Default resulting from the default in the payment
of
Additional Amounts if the Trustee does not have actual knowledge or written
notice that such payment is due and payable) .
None
of
the provisions contained in this Indenture shall require the 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.
Section
6.02
Reliance
on Documents, Opinions, etc
.
Except
as
otherwise provided in Section 6.01:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or
other
paper or document believed by it in good faith to be genuine and to have
been
signed or presented by the proper party or parties;
(b)
any
request, direction, order or demand of the Company mentioned herein shall
be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may
be evidenced to the Trustee by a copy thereof certified by the Secretary
or an
Assistant Secretary of the Company;
(c)
the
Trustee may consult with counsel of its selection and any advice or Opinion
of
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
accordance with such advice or Opinion of Counsel;
(d)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any
of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e)
the
Trustee shall not be liable for any action taken or omitted 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 Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence
of an
Event of Default with respect to the Debt Securities (which has not been
cured
or waived) to exercise with respect to the Debt Securities such of the rights
and powers vested in it by this Indenture, and to use the same degree of
care
and skill in their exercise, as a prudent person would exercise or use under
the
circumstances in the conduct of such person’s own affairs;
(f)
the
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, coupon or other
paper or document, unless requested in writing to do so by the holders of
a
majority in aggregate principal amount of the outstanding Debt Securities
affected thereby;
provided
,
however
,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
so
proceeding; and
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents (including any Authenticating
Agent) or attorneys, and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it with
due
care.
Section
6.03
No
Responsibility for Recitals, etc
.
The
recitals contained herein and in the Debt Securities (except in the certificate
of authentication of the Trustee or the Authenticating Agent) shall be taken
as
the statements of the Company, and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same. The Trustee and
the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Debt Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the Company
of any
Debt Securities or the proceeds of any Debt Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
Section
6.04
Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debt
Securities
.
The
Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or
any
Debt Security registrar, in its individual or any other capacity, may become
the
owner or pledgee of Debt Securities with the same rights it would have if
it
were not Trustee, Authenticating Agent, Paying Agent, transfer agent or Debt
Security registrar.
Section
6.05
Moneys
to be Held in Trust
.
Subject
to the provisions of Section 12.04, all moneys received by the Trustee or
any
Paying Agent shall, until used or applied as herein provided, be held in
trust
for the purpose for which they were received, but need not be segregated
from
other funds except to the extent required by law. The Trustee and any Paying
Agent shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company. So long
as no
Event of Default shall have occurred and be continuing, all interest allowed
on
any such moneys, if any, shall be paid from time to time to the Company upon
the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, the Chief Operating Officer, a Vice President, the Treasurer
or
an Assistant Treasurer of the Company.
Section
6.06
Compensation
and Expenses of Trustee.
The
Company covenants and agrees to pay to the Trustee from time to time, and
the
Trustee shall be entitled to, such compensation as shall be agreed to in
writing
between the Company and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and
the
Company will pay or reimburse the Trustee upon its written request for all
documented reasonable expenses, disbursements and advances incurred or made
by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance that arises from its
negligence, willful misconduct or bad faith. The Company also covenants to
indemnify each of the Trustee (including in its individual capacity) and
any
predecessor Trustee (and its officers, agents, directors and employees) for,
and
to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the Trustee),
except to the extent such loss, damage, claim, liability or expense results
from
the negligence, willful misconduct or bad faith of such indemnitee, arising
out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in the premises. The obligations of the Company under this Section
to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for
documented expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by
a lien
prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit
of
the holders of particular Debt Securities.
Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an
Event
of Default specified in clause (e), (f), (g), (h) or (i) of Section 5.01,
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.
The
provisions of this Section shall survive the resignation or removal of the
Trustee and the defeasance or other termination of this Indenture.
Notwithstanding
anything in this Indenture or any Debt Security to the contrary, the Trustee
shall have no obligation whatsoever to advance funds to pay any principal
of or
interest on or other amounts with respect to the Debt Securities or otherwise
advance funds to or on behalf of the Company.
Section
6.07
Officers’
Certificate as Evidence
.
Except
as
otherwise provided in Sections 6.01 and 6.02, whenever in the administration
of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, willful
misconduct or bad faith on the part of the Trustee, be deemed to
be
conclusively proved and established by an Officers’ Certificate delivered to the
Trustee, and such certificate, in the absence of negligence, willful misconduct
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
Section
6.08
Eligibility
of Trustee
.
The
Trustee hereunder shall at all times be a U.S. Person that is a banking
corporation or national association organized and doing business under the
laws
of the United States of America or any state thereof or of the District of
Columbia and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state,
or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section the combined capital and surplus of such corporation
or
national association shall be deemed to be its combined capital and surplus
as
set forth in its most recent records of condition so published.
The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee,
notwithstanding that such corporation or national association shall be otherwise
eligible and qualified under this Article.
In
case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.09.
If
the
Trustee has or shall acquire any “conflicting interest” within the meaning of
§310(b) of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject
to,
this Indenture.
Section
6.09
Resignation
or Removal of Trustee
.
(a)
The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign
by giving written notice of such resignation to the Company and by mailing
notice thereof, at the Company’s expense, to the holders of the Debt Securities
at their addresses as they shall appear on the Debt Security Register. Upon
receiving such notice of resignation, the Company shall promptly appoint
a
successor trustee or trustees by written instrument, in duplicate, executed
by
order of its Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed and have accepted appointment within
30
days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities for
at
least six months may, subject to the provisions of Section 5.09, on behalf
of
himself or herself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. Such court
may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(b)
In
case
at any time any of the following shall occur:
(i)
the
Trustee shall fail to comply with the provisions of the last paragraph of
Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months;
(ii)
the
Trustee shall cease to be eligible in accordance with the provisions of Section
6.08 and shall fail to resign after written request therefor by the Company
or
by any such Securityholder; or
(iii)
the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then,
in
any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board
of
Directors, one copy of which instrument shall be delivered to the Trustee
so
removed and one copy to the successor Trustee, or, subject to the provisions
of
Section 5.09, if no successor Trustee shall have been so appointed and have
accepted appointment within 30 days of the occurrence of any of (i), (ii)
or
(iii) above, any Securityholder who has been a bona fide holder of a Debt
Security or Debt Securities for at least six months may, on behalf of himself
or
herself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
Trustee.
(c)
Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debt Securities at the time outstanding
may
at any time remove the Trustee and nominate a successor Trustee, which shall
be
deemed appointed as successor Trustee unless within ten Business Days after
such
nomination the Company objects thereto, in which case or in the case of a
failure by such holders to nominate a successor Trustee, the Trustee so removed
or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section, may petition any court of competent jurisdiction
for an appointment of a successor.
(d)
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section shall become effective
upon
acceptance of appointment by the successor Trustee as provided in Section
6.10.
Section
6.10
Acceptance
by Successor Trustee
.
Any
successor Trustee appointed as provided in Section 6.09 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
indenture
supplemental
hereto which shall contain such provisions as shall be deemed necessary
or
desirable to confirm that all of the rights, powers, trusts and duties
of the
retiring Trustee shall be vested in the successor Trustee, and thereupon
the
resignation or removal of the retiring Trustee shall become effective and
such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations with respect
to the
Debt Securities of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall,
upon
payment of the amounts then due it pursuant to the provisions of Section
6.06,
execute and deliver an instrument transferring to such successor Trustee
all the
rights and powers of the Trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the
Company shall execute any and all instruments in writing for more fully
and
certainly vesting in and confirming to such successor Trustee all such
rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien
upon
all property or funds held or collected by such Trustee to secure any amounts
then due it pursuant to the provisions of Section 6.06.
No
successor Trustee shall accept appointment as provided in this Section unless
at
the time of such acceptance such successor Trustee shall be eligible and
qualified under the provisions of Section 6.08.
In
no
event shall a retiring Trustee be liable for the acts or omissions of any
successor Trustee hereunder.
Upon
acceptance of appointment by a successor Trustee as provided in this Section,
the Company shall mail notice of the succession of such Trustee hereunder
to the
holders of Debt Securities at their addresses as they shall appear on the
Debt
Security Register. If the Company fails to mail such notice within ten Business
Days after the acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the
Company.
Section
6.11
Succession
by Merger, etc
.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of
the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto,
provided
,
that
such corporation shall be otherwise eligible and qualified under this
Article.
In
case
at the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Debt Securities shall have been authenticated but
not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debt Securities
so
authenticated; and in case at that time any of the Debt Securities shall
not
have been authenticated, any successor to the Trustee may authenticate such
Debt
Securities either in the name of any predecessor hereunder or in the name
of the
successor
Trustee; and in all such cases such certificates shall have the full force
which
it is anywhere in the Debt Securities or in this Indenture provided that
the
certificate of the Trustee shall have;
provided
,
however
,
that
the right to adopt the certificate of authentication of any predecessor
Trustee
or authenticate Debt Securities in the name of any predecessor Trustee
shall
apply only to its successor or successors by merger, conversion or
consolidation.
Section
6.12
Authenticating
Agents
.
There
may
be one or more Authenticating Agents appointed by the Trustee upon the request
of the Company with power to act on its behalf and subject to its direction
in
the authentication and delivery of Debt Securities issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as
though
any such Authenticating Agent had been expressly authorized to authenticate
and
deliver Debt Securities;
provided
,
however
,
that
the Trustee shall have no liability to the Company for any acts or omissions
of
the Authenticating Agent with respect to the authentication and delivery
of Debt
Securities. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
state
thereof or of the District of Columbia authorized under such laws to act
as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state
or
District of Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
If at
any time an Authenticating Agent shall cease to be eligible in accordance
with
the provisions of this Section, it shall resign immediately in the manner
and
with the effect herein specified in this Section.
Any
corporation into which any Authenticating Agent may be merged or converted
or
with which it may be consolidated, or any corporation resulting from any
merger,
consolidation or conversion to which any Authenticating Agent shall be a
party,
or any corporation succeeding to all or substantially all of the corporate
trust
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section without the execution or filing of any paper
or any
further act on the part of the parties hereto or such Authenticating
Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to the Debt
Securities by giving written notice of termination to such Authenticating
Agent
and to the Company. Upon receiving such a notice of resignation or upon such
a
termination, or in case at any time any Authenticating Agent shall cease
to be
eligible under this Section, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent eligible
under
this Section, shall give written notice of such appointment to the Company
and
shall mail notice of such appointment to all holders of Debt Securities as
the
names and addresses of such holders appear on the Debt Security Register.
Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all rights, powers, duties and responsibilities
of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The
Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE
VII
CONCERNING
THE SECURITYHOLDERS
Section
7.01
Action
by Securityholders
.
Whenever
in this Indenture it is provided that the holders of a specified percentage
in
aggregate principal amount of the Debt Securities or aggregate liquidation
amount of the Capital Securities may take any action (including the making
of
any demand or request, the giving of any notice, consent or waiver or the
taking
of any other action), the fact that at the time of taking any such action
the
holders of such specified percentage have joined therein may be evidenced
(a) by
any instrument or any number of instruments of similar tenor executed by
such
Securityholders or holders of Capital Securities, as the case may be, in
person
or by agent or proxy appointed in writing, or (b) by the record of such holders
of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article VIII or of such holders of Capital Securities duly called and held
in
accordance with the provisions of the Declaration, or (c) by a combination
of
such instrument or instruments and any such record of such a meeting of such
Securityholders or holders of Capital Securities, as the case may be, or
(d) by
any other method the Trustee deems satisfactory.
If
the
Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such Debt Securities for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a
record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes
of
determining whether Securityholders of the requisite proportion of outstanding
Debt Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debt Securities shall be
computed as of the record date;
provided
,
however
,
that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant
to the
provisions of this Indenture not later than six months after the record
date.
Section
7.02
Proof
of Execution by Securityholders
.
Subject
to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution
of any
instrument by a Securityholder or such Securityholder’s agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations
as
may be prescribed by the Trustee or in such manner as shall be satisfactory
to
the Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security
registrar.
The Trustee may require such additional proof of any matter referred to
in this
Section as it shall deem necessary.
The
record of any Securityholders’ meeting shall be proved in the manner provided in
Section 8.06.
Section
7.03
Who
Are Deemed Absolute Owners
.
Prior
to
due presentment for registration of transfer of any Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent
and
any Debt Security registrar may deem the Person in whose name such Debt Security
shall be registered upon the Debt Security Register to be, and may treat
such
Person as, the absolute owner of such Debt Security (whether or not such
Debt
Security shall be overdue) for the purpose of receiving payment of or on
account
of the principal of and premium, if any, and interest on such Debt Security
and
for all other purposes; and none of the Company, the Trustee, any Authenticating
Agent, any Paying Agent, any transfer agent or any Debt Security registrar
shall
be affected by any notice to the contrary. All such payments so made to any
holder for the time being or upon such holder’s order shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge
the
liability for moneys payable upon any such Debt Security.
Section
7.04
Debt
Securities Owned by Company Deemed Not Outstanding
.
In
determining whether the holders of the requisite aggregate principal amount
of
Debt Securities have concurred in any direction, consent or waiver under
this
Indenture, Debt Securities which are owned by the Company or any other obligor
on the Debt Securities or by any Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with the Company
(other
than the Trust) or any other obligor on the Debt Securities shall be disregarded
and deemed not to be outstanding for the purpose of any such determination,
provided
,
that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which
a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith
may
be regarded as outstanding for the purposes of this Section if the pledgee
shall
establish to the satisfaction of the Trustee the pledgee’s right to vote such
Debt Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or
under
direct or indirect common control with the Company or any such other obligor.
In
the case of a dispute as to such right, any decision by the Trustee taken
upon
the advice of counsel shall be full protection to the Trustee.
Section
7.05
Revocation
of Consents; Future Holders Bound
.
At
any
time prior to (but not after) the evidencing to the Trustee, as provided
in
Section 7.01, of the taking of any action by the holders of the percentage
in
aggregate principal amount of the Debt Securities specified in this Indenture
in
connection with such action, any holder (in cases where no record date has
been
set pursuant to Section 7.01) or any holder as of an applicable record date
(in
cases where a record date has been set pursuant to Section 7.01) of a Debt
Security (or any Debt Security issued in whole or in part in exchange or
substitution
therefor)
the serial number of which is shown by the evidence to be included in the
Debt
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at the Principal Office of the Trustee
and upon
proof of holding as provided in Section 7.02, revoke such action so far
as
concerns such Debt Security (or so far as concerns the principal amount
represented by any exchanged or substituted Debt Security). Except as aforesaid
any such action taken by the holder of any Debt Security shall be conclusive
and
binding upon such holder and upon all future holders and owners of such
Debt
Security, and of any Debt Security issued in exchange or substitution therefor
or on registration of transfer thereof, irrespective of whether or not
any
notation in regard thereto is made upon such Debt Security or any Debt
Security
issued in exchange or substitution therefor.
ARTICLE
VIII
SECURITYHOLDERS’
MEETINGS
Section
8.01
Purposes
of Meetings
.
A
meeting
of Securityholders may be called at any time and from time to time pursuant
to
the provisions of this Article VIII for any of the following
purposes:
(a)
to
give
any notice to the Company or to the Trustee, or to give any directions to
the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
(b)
to
remove
the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;
(c)
to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or
(d)
to
take
any other action authorized to be taken by or on behalf of the holders of
any
specified aggregate principal amount of such Debt Securities under any other
provision of this Indenture or under applicable law.
Section
8.02
Call
of Meetings by Trustee
.
The
Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 8.01, to be held at such time and at such place in The
City
of New York, the Borough of Manhattan, or Wilmington, Delaware, as the Trustee
shall determine. Notice of every meeting of the Securityholders, setting
forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to holders of Debt Securities
affected at their addresses as they shall appear on the Debt Securities
Register. Such notice shall be mailed not less than 20 nor more than 180
days
prior to the date fixed for the meeting.
Section
8.03
Call
of Meetings by Company or Securityholders
.
In
case
at any time the Company pursuant to a Board Resolution, or the holders of
at
least 10% in aggregate principal amount of the Debt Securities, as the case
may
be, then outstanding, shall have requested the Trustee to call a meeting
of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place
in
Providence, Rhode Island for such meeting and may call such meeting to take
any
action authorized in Section 8.01, by mailing notice thereof as provided
in
Section 8.02.
Section
8.04
Qualifications
for Voting
.
To
be
entitled to vote at any meeting of Securityholders, a Person shall be (a)
a
holder of one or more Debt Securities or (b) a Person appointed by an instrument
in writing as proxy by a holder of one or more Debt Securities. The only
Persons
who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and
their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section
8.05
Regulations
.
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders,
in
regard to proof of the holding of Debt Securities and of the appointment
of
proxies, and in regard to the appointment and duties of inspectors of votes,
the
submission and examination of proxies, certificates and other evidence of
the
right to vote, and such other matters concerning the conduct of the meeting
as
it shall deem appropriate.
The
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 8.03, in which case the Company or
the
Securityholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of
the meeting shall be elected by majority vote at the meeting.
Subject
to the provisions of Section 7.04, at any meeting each holder of Debt Securities
with respect to which such meeting is being held or proxy therefor shall
be
entitled to one vote for each $1,000 principal amount of Debt Securities
held or
represented by such holder;
provided
,
however
,
that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not outstanding and ruled by the chairman of the meeting to
be not
outstanding. The chairman of the meeting shall have no right to vote other
than
by virtue of Debt Securities held by such chairman or instruments in writing
as
aforesaid duly designating such chairman as the Person to vote on behalf
of
other Securityholders. Any meeting of Securityholders duly called pursuant
to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time
by a
majority of those present, whether or not constituting a quorum, and the
meeting
may be held as so adjourned without further notice.
Section
8.06
Voting
.
The
vote
upon any resolution submitted to any meeting of holders of Debt Securities
with
respect to which such meeting is being held shall be by written ballots on
which
shall be subscribed the signatures of such holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint
two
inspectors of votes who shall count all votes cast at the meeting for or
against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting.
A
record in duplicate of the proceedings of each meeting of Securityholders
shall
be prepared by the secretary of the meeting and there shall be attached to
said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that
said
notice was mailed as provided in Section 8.02. The record shall show the
serial
numbers of the Debt Securities voting in favor of or against any resolution.
The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered
to the
Company and the other to the Trustee to be preserved by the Trustee, the
latter
to have attached thereto the ballots voted at the meeting.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section
8.07
Quorum;
Actions
.
The
Persons entitled to vote a majority in aggregate principal amount of the
Debt
Securities then outstanding shall constitute a quorum for a meeting of
Securityholders;
provided
,
however
,
that if
any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which may
be
given by the holders of not less than a specified percentage in aggregate
principal amount of the Debt Securities then outstanding, the Persons holding
or
representing such specified percentage in aggregate principal amount of the
Debt
Securities then outstanding will constitute a quorum. In the absence of a
quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall,
if convened at the request of Securityholders, be dissolved. In any other
case,
the meeting may be adjourned for a period of not less than 10 days as determined
by the permanent chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than
10 days
as determined by the permanent chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 8.02, except that such notice need
be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting
shall state expressly the percentage, as provided above, of the aggregate
principal amount of the Debt Securities then outstanding which shall constitute
a quorum.
Except
as
limited by the proviso in the first paragraph of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is
present as aforesaid may be adopted by the affirmative vote of the holders
of a
majority in
aggregate
principal amount of the Debt Securities then outstanding;
provided
,
however
,
that,
except as limited by the proviso in the first paragraph of Section 9.02,
any
resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action that this Indenture expressly
provides
may be given by the holders of not less than a specified percentage in
outstanding principal amount of the Debt Securities may be adopted at a
meeting
or an adjourned meeting duly reconvened and at which a quorum is present
as
aforesaid only by the affirmative vote of the holders of not less than
such
specified percentage in aggregate principal amount of the Debt Securities
then
outstanding.
Any
resolution passed or decision taken at any meeting of holders of Debt Securities
duly held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the
meeting.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01
Supplemental
Indentures without Consent of Securityholders
.
The
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of the following
purposes:
(a)
to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company, pursuant to Article XI
hereof;
(b)
to
add to
the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debt Securities as the Board of Directors
shall consider to be for the protection of the holders of such Debt Securities,
and to make the occurrence, or the occurrence and continuance, of a Default
in
any of such additional covenants, restrictions or conditions a Default or
an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided
,
however
,
that in
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
Default (which period may be shorter or longer than that allowed in the case
of
other Defaults) or may provide for an immediate enforcement upon such Default
or
may limit the remedies available to the Trustee upon such default;
(c)
to
cure
any ambiguity or to correct or supplement any provision contained herein
or in
any supplemental indenture which may be defective or inconsistent with any
other
provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture,
provided
,
that
any such action shall not adversely affect the interests of the holders of
the
Debt Securities then outstanding;
(d)
to
add
to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities, including to provide for transfer procedures
and
restrictions substantially similar to
those
applicable to the Capital Securities, as required by Section 2.05 (for
purposes
of assuring that no registration of Debt Securities is required under the
Securities Act),
provided
,
that
any such action shall not adversely affect the interests of the holders
of the
Debt Securities then outstanding (it being understood, for purposes of
this
proviso, that transfer restrictions on Debt Securities substantially similar
to
those applicable to Capital Securities shall not be deemed to adversely
affect
the holders of the Debt Securities);
(e)
to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debt Securities and to add to or change any of
the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to
the requirements of Section 6.10;
(f)
to
make
any change (other than as elsewhere provided in this Section) that does not
adversely affect the rights of any Securityholder in any material respect;
or
(g)
to
provide for the issuance of and establish the form and terms and conditions
of
the Debt Securities, to establish the form of any certifications required
to be
furnished pursuant to the terms of this Indenture or the Debt Securities,
or to
add to the rights of the holders of Debt Securities.
The
Trustee is hereby authorized to join with the Company in the execution of
any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall
not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be
executed by the Company and the Trustee without the consent of the holders
of
any of the Debt Securities at the time outstanding, notwithstanding any of
the
provisions of Section 9.02.
Section
9.02
Supplemental
Indentures with Consent of Securityholders
.
With
the
consent (evidenced as provided in Section 7.01) of the holders of a majority
in
aggregate principal amount of the Debt Securities at the time outstanding
affected by such supplemental indenture, the Company, when authorized by
a Board
Resolution, and the Trustee may from time to time and at any time enter into
an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act, then in effect, applicable to indentures
qualified thereunder) for the purpose of adding any provisions to or changing
in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities;
provided
,
however
,
that no
such supplemental indenture shall, without the consent of the holders of
each
Debt Security then outstanding and affected thereby, (i) change the Maturity
Date of any Debt Security, or reduce the principal amount thereof or any
premium
thereon, or reduce the rate (or manner of calculation of the rate) or extend
the
time of payment of interest thereon, or reduce (other than as a result of
the
maturity or earlier redemption of any such Debt Security in accordance with
the
terms of this Indenture and such Debt Security) or increase the
aggregate
principal amount of Debt Securities then outstanding, or change any of
the
redemption provisions, or make the principal thereof or any interest or
premium
thereon payable in any coin or currency other than United States Dollars,
or
impair or affect the right of any Securityholder to institute suit for
payment
thereof, or (ii) reduce the aforesaid percentage of Debt Securities the
holders
of which are required to consent to any such supplemental indenture; and
provided
,
further
,
that if
the Debt Securities are held by the Trust or the trustee of the Trust,
such
supplemental indenture shall not be effective until the holders of a majority
in
aggregate liquidation amount of the outstanding Capital Securities shall
have
consented to such supplemental indenture;
provided
,
further
,
that if
the consent of the Securityholder of each outstanding Debt Security is
required,
such supplemental indenture shall not be effective until each holder of
the
outstanding Capital Securities shall have consented to such supplemental
indenture.
Upon
the
request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders (and holders of Capital
Securities, if required) as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion,
but
shall not be obligated to, enter into such supplemental indenture.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by
mail,
first class postage prepaid, a notice, prepared by the Company, setting forth
in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Debt Security
Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
It
shall
not be necessary for the consent of the Securityholders under this Section
to
approve the particular form of any proposed supplemental indenture, but it
shall
be sufficient if such consent shall approve the substance thereof.
Section
9.03
Effect
of Supplemental Indentures
.
Upon
the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended
in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this
Indenture for any and all purposes.
Section
9.04
Notation
on Debt Securities
.
Debt
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article IX may bear a notation
as
to
any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debt Securities so modified as to conform,
in
the opinion of the Board of Directors of the Company, to any modification
of
this Indenture contained in any such supplemental indenture may be prepared
and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debt Securities then
outstanding.
Section
9.05
Evidence
of Compliance of Supplemental Indenture to be Furnished to
Trustee
.
The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in addition
to the documents required by Section 14.06, receive an Officers’ Certificate as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX. The Trustee shall also
receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article IX is authorized or permitted
by,
and conforms to, the terms of this Article IX and that it is proper for the
Trustee under the provisions of this Article IX to join in the execution
thereof.
ARTICLE
X
REDEMPTION
OF SECURITIES
Section
10.01
Optional
Redemption
.
The
Company shall have the right, subject to the receipt by the Company of the
prior
approval from the Federal Reserve, if then required under applicable capital
guidelines or policies of the Federal Reserve, to redeem the Debt Securities,
in
whole or (provided that all accrued and unpaid interest has been paid on
all
Debt Securities for all Interest Periods terminating on or prior to such
date)
from time to time in part, on any Interest Payment Date on or after November
23,
2010 (each, an “Optional Redemption Date”), at the Optional Redemption
Price.
Section
10.02
Special
Event Redemption
.
If
a
Special Event shall occur and be continuing, the Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal
Reserve, if then required under applicable capital guidelines or policies
of the
Federal Reserve, to redeem the Debt Securities, in whole but not in part,
at any
time within 90 days following the occurrence of such Special Event (the “Special
Redemption Date”), at the Special Redemption Price.
Section
10.03
Notice
of Redemption; Selection of Debt Securities
.
In
case
the Company shall desire to exercise the right to redeem all, or, as the
case
may be, any part of the Debt Securities, it shall fix a date for redemption
and
shall mail, or cause the Trustee to mail (at the expense of the Company),
a
notice of such redemption at least 30 and not more than 60 days prior to
the
date fixed for redemption to the holders of Debt Securities so to be redeemed
as
a whole or in part at their last addresses as the same appear on the Debt
Security Register. Such mailing shall be by first class mail. The notice
if
mailed in the manner
herein
provided shall be conclusively presumed to have been duly given, whether
or not
the holder receives such notice. In any case, failure to give such notice
by
mail or any defect in the notice to the holder of any Debt Security designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.
Each
such
notice of redemption shall specify the CUSIP number, if any, of the Debt
Securities to be redeemed, the date fixed for redemption, the price (or manner
of calculation of the price) at which Debt Securities are to be redeemed,
the
place or places of payment, that payment will be made upon presentation and
surrender of such Debt Securities, that interest accrued to the date fixed
for
redemption will be paid as specified in said notice, and that on and after
said
date interest thereon or on the portions thereof to be redeemed will cease
to
accrue. If less than all the Debt Securities are to be redeemed, the notice
of
redemption shall specify the numbers of the Debt Securities to be redeemed.
In
case the Debt Securities are to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption,
upon
surrender of such Debt Security, a new Debt Security or Debt Securities in
principal amount equal to the unredeemed portion thereof will be
issued.
Prior
to
10:00 a.m., New York City time, on the Optional Redemption Date or the Special
Redemption Date specified in the notice of redemption given as provided in
this
Section, the Company will deposit with the Trustee or with one or more Paying
Agents an amount of money sufficient to redeem on such date all the Debt
Securities so called for redemption at the applicable price therefor, together
with unpaid interest accrued to such date.
The
Company will give the Trustee notice not less than 45 nor more than 75 days
prior to the date fixed for redemption as to the price at which the Debt
Securities are to be redeemed and the aggregate principal amount of Debt
Securities to be redeemed and the Trustee shall select, in such manner as
in its
sole discretion it shall deem appropriate and fair, the Debt Securities or
portions thereof (in integral multiples of $1,000) to be redeemed.
Section
10.04
Payment
of Debt Securities Called for Redemption
.
If
notice
of redemption has been given as provided in Section 10.03, the Debt Securities
or portions of Debt Securities with respect to which such notice has been
given
shall become due and payable on the related Optional Redemption Date or Special
Redemption Date (as the case may be) and at the place or places stated in
such
notice at the applicable price therefor, together with unpaid interest accrued
thereon to said Optional Redemption Date or the Special Redemption Date (as
the
case may be), and on and after said Optional Redemption Date or the Special
Redemption Date (as the case may be) (unless the Company shall default in
the
payment of such Debt Securities at the redemption price, together with unpaid
interest accrued thereon to said date) interest on the Debt Securities or
portions of Debt Securities so called for redemption shall cease to accrue.
On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, such Debt Securities or the specified portions
thereof
shall be paid and redeemed by the Company at the applicable price therefor,
together with unpaid interest, if any, accrued thereon to said Optional
Redemption Date or the Special Redemption Date (as the case may be);
provided
,
however
,
that
interest payable on any Interest Payment Date
on
or
prior to said Optional Redemption Date or the Special Redemption Date will
be
paid to the holders on the relevant regular record date.
Upon
presentation of any Debt Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery
to
the holder thereof, at the expense of the Company, a new Debt Security or
Debt
Securities of authorized denominations in principal amount equal to the
unredeemed portion of the Debt Security so presented.
ARTICLE
XI
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
Section
11.01
Company
May Consolidate, etc., on Certain Terms
.
Nothing
contained in this Indenture or in the Debt Securities shall prevent any
consolidation or merger of the Company with or into any other corporation
or
corporations (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer
or
other disposition of all or substantially all of the property or capital
stock
of the Company or its successor or successors to any other corporation (whether
or not affiliated with the Company or its successor or successors) authorized
to
acquire and operate the same;
provided
,
however
,
that
the Company hereby covenants and agrees that (i) upon any such
consolidation, merger (where the Company is not the surviving corporation),
sale, conveyance, transfer or other disposition, the successor entity shall
be a
corporation organized and existing under the laws of the United States or
any
state thereof or the District of Columbia (unless such corporation has (1)
agreed to make all payments due in respect of the Debt Securities or, if
outstanding, the Trust Securities and the Capital Securities Guarantee without
withholding or deduction for, or on account of, any taxes, duties, assessments
or other governmental charges under the laws or regulations of the jurisdiction
of organization or residence (for tax purposes) of such corporation or any
political subdivision or taxing authority thereof or therein unless required
by
applicable law, in which case such corporation shall have agreed to pay such
additional amounts as shall be required so that the net amounts received
and
retained by the holders of such Debt Securities or Trust Securities, as the
case
may be, after payment of all taxes (including withholding taxes), duties,
assessments or other governmental charges, will be equal to the amounts that
such holders would have received and retained had no such taxes (including
withholding taxes), duties, assessments or other governmental charges been
imposed, (2) irrevocably and unconditionally consented and submitted to the
jurisdiction of any United States federal court or New York state court,
in each
case located in the Borough of Manhattan, The City of New York, in respect
of
any action, suit or proceeding against it arising out of or in connection
with
this Indenture, the Debt Securities, the Capital Securities Guarantee or
the
Declaration and irrevocably and unconditionally waived, to the fullest extent
permitted by law, any objection to the laying of venue in any such court
or that
any such action, suit or proceeding has been brought in an inconvenient forum
and (3) irrevocably appointed an agent in The City of New York for service
of
process in any action, suit or proceeding referred to in clause (2) above)
and
such corporation expressly assumes all of the obligations of the Company
under
the Debt Securities, this Indenture, the Capital Securities Guarantee and
the
Declaration and (ii) after
giving
effect to any such consolidation, merger, sale, conveyance, transfer or
other
disposition, no Default or Event of Default shall have occurred and be
continuing.
Section
11.02
Successor
Entity to be Substituted
.
In
case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition contemplated in Section 11.01 and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered
to the
Trustee and reasonably satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on
all of
the Debt Securities and the due and punctual performance and observance of
all
of the covenants and conditions of this Indenture to be performed or observed
by
the Company, such successor corporation shall succeed to and be substituted
for
the Company, with the same effect as if it had been named herein as the Company,
and thereupon the predecessor entity shall be relieved of any further liability
or obligation hereunder or upon the Debt Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or
in the
name of the Company, any or all of the Debt Securities issuable hereunder
which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions
and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debt Securities which previously
shall
have been signed and delivered by the officers of the Company to the Trustee
or
the Authenticating Agent for authentication, and any Debt Securities which
such
successor corporation thereafter shall cause to be signed and delivered to
the
Trustee or the Authenticating Agent for that purpose. All the Debt Securities
so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Debt Securities had
been
issued at the date of the execution hereof.
Section
11.03
Opinion
of Counsel to be Given to Trustee
.
The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive,
in
addition to the Opinion of Counsel required by Section 9.05, an Opinion of
Counsel as conclusive evidence that any consolidation, merger, sale, conveyance,
transfer or other disposition, and any assumption, permitted or required
by the
terms of this Article XI complies with the provisions of this Article
XI.
ARTICLE
XII
SATISFACTION
AND DISCHARGE OF INDENTURE
Section
12.01
Discharge
of Indenture
.
When
(a)
the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have
been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) and not theretofore canceled, or (b) all the Debt Securities
not theretofore canceled or delivered to the Trustee for cancellation shall
have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under
arrangements
satisfactory to the Trustee for the giving of notice of redemption, and
the
Company shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon redemption
all of the Debt Securities (other than any Debt Securities which shall
have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided
in Section 2.06) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due
or to
become due to the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be, but excluding, however, the amount
of any
moneys for the payment of principal of and premium, if any, or interest
on the
Debt Securities (1) theretofore repaid to the Company in accordance with
the
provisions of Section 12.04, or (2) paid to any state or to the District
of
Columbia pursuant to its unclaimed property or similar laws, and if in
the case
of either clause (a) or (b) above the Company shall also pay or cause to
be paid
all other sums payable hereunder by the Company, then this Indenture shall
cease
to be of further effect except for the provisions of Sections 2.05, 2.06,
3.01,
3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until such
Debt
Securities shall mature or are redeemed, as the case may be, and are paid
in
full. Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, and the
Trustee,
on demand of the Company accompanied by an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided
for
relating to the satisfaction and discharge of this Indenture have been
complied
with, and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture,
the
Company, however, hereby agreeing to reimburse the Trustee for any costs
or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.
Section
12.02
Deposited
Moneys to be Held in Trust by Trustee
.
Subject
to the provisions of Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
if
acting as its own Paying Agent), to the holders of the particular Debt
Securities for the payment of which such moneys have been deposited with
the
Trustee, of all sums due and to become due thereon for principal, premium,
if
any, and interest.
Section
12.03
Paying
Agent to Repay Moneys Held
.
Upon
the
satisfaction and discharge of this Indenture, all moneys then held by any
Paying
Agent of the Debt Securities (other than the Trustee) shall, upon demand
of the
Company, be repaid to the Company or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to
such
moneys.
Section
12.04
Return
of Unclaimed Moneys
.
Any
moneys deposited with or paid to the Trustee or any Paying Agent for payment
of
the principal of and premium, if any, or interest on Debt Securities and
not
applied but remaining unclaimed by the holders of Debt Securities for two
years
after the date upon which the principal of and premium, if any, or interest
on
such Debt Securities, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee or such Paying Agent on written
demand; and the holder of any of the Debt Securities shall thereafter look
only
to the Company for any payment which such holder may be entitled to collect
and
all liability of the Trustee or such
Paying
Agent with respect to such moneys shall thereupon cease.
ARTICLE
XIII
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS,
OFFICERS
AND DIRECTORS
Section
13.01
Indenture
and Debt Securities Solely Corporate Obligations
.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debt Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement
of
the Company in this Indenture or in any supplemental indenture, or in any
such
Debt Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director,
employee or agent, as such, past, present or future, of the Company or of
any
predecessor or successor corporation of the Company, either directly or through
the Company or any successor corporation of the Company, whether by virtue
of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all
such
liability is hereby expressly waived and released as a condition of, and
as a
consideration for, the execution of this Indenture and the issue of the Debt
Securities.
ARTICLE
XIV
MISCELLANEOUS
PROVISIONS
Section
14.01
Successors
.
All
the
covenants, stipulations, promises and agreements of the Company contained
in
this Indenture shall bind its successors and assigns, whether so expressed
or
not.
Section
14.02
Official
Acts by Successor Entity
.
Any
act
or proceeding by any provision of this Indenture authorized or required to
be
done or performed by any board, committee or officer of the Company shall
and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall at
the
time be the lawful successor of the Company.
Section
14.03
Surrender
of Company Powers
.
The
Company, by instrument in writing executed by authority of 2/3 (two thirds)
of
its Board of Directors and delivered to the Trustee, may surrender any of
the
powers reserved to the Company and thereupon such power so surrendered shall
terminate both as to the Company and as to any permitted successor.
Section
14.04
Addresses
for Notices, etc
.
Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Securityholders
on the
Company may be
given
or
served in writing by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed (until another address is filed
by
the Company with the Trustee for such purpose) to the Company at 23 Broad
Street, Westerly, Rhode Island 02891, Attention: David V. Devault. Any
notice,
direction, request or demand by any Securityholder or the Company to or
upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the office of Wilmington Trust
Company
at Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001,
Attention: Corporate Capital Markets.
Section
14.05
Governing
Law
.
This
Indenture and the Debt Securities shall each be governed by, and construed
in
accordance with, the laws of the State of New York, without regard to conflict
of laws principles of said State other than Section 5-1401 of the New York
General Obligations Law.
Section
14.06
Evidence
of Compliance with Conditions Precedent
.
Upon
any
application or demand by the Company to the Trustee to take any action under
any
of the provisions of this Indenture, the Company shall furnish to the Trustee
an
Officers’ Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in
the
opinion of such counsel, all such conditions precedent have been complied
with
(except that no such Opinion of Counsel is required to be furnished to the
Trustee in connection with the authentication and issuance of Debt
Securities).
Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided
for in
this Indenture (except certificates delivered pursuant to Section 3.05) shall
include (a) a statement that the person making such certificate or opinion
has
read such covenant or condition and the definitions relating thereto; (b)
a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (c) a statement that, in the opinion of such person, he or she
has
made such examination or investigation as is necessary to enable him or her
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 or not, in the opinion
of
such person, such condition or covenant has been complied with.
Section
14.07
Business
Day Convention
.
Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date after
the Interest Payment Date in November, 2010, other than the Maturity
Date,
any Optional Redemption Date or the Special Redemption Date, falls on a day
that
is not a Business Day, then any interest payable will be paid on, and such
Interest Payment Date will be moved to, the next succeeding Business Day,
and
additional interest will accrue for each day that such payment is delayed
as a
result thereof. If any Interest Payment Date on or prior to the Interest
Payment
Date in November, 2010, the Maturity Date, any Optional Redemption
Date or
the Special Redemption Date falls on a day that is not a Business Day, then
the
principal, premium, if any, and/or interest payable on such date will be
paid on
the next succeeding
Business
Day, and no additional interest will accrue in respect of such payment
made on
such next succeeding Business Day.
Section
14.08
Table
of Contents, Headings, etc
.
The
table
of contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to
be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section
14.09
Execution
in Counterparts
.
This
Indenture may be executed in any number of counterparts, each of which shall
be
an original, but such counterparts shall together constitute but one and
the
same instrument.
Section
14.10
Separability
.
In
case
any one or more of the provisions contained in this Indenture or in the Debt
Securities shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect
any other provisions of this Indenture or of such Debt Securities, but this
Indenture and such Debt Securities shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein or
therein.
Section
14.11
Assignment
.
Subject
to Article XI, the Company will have the right at all times to assign any
of its
rights or obligations under this Indenture and the Debt Securities to a direct
or indirect wholly owned Subsidiary of the Company;
provided
,
however
,
that,
in the event of any such assignment, the Company will remain liable for all
such
obligations. Subject to the foregoing, this Indenture is binding upon and
inures
to the benefit of the parties hereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties
thereto.
Section
14.12
Acknowledgment
of Rights
.
The
Company acknowledges that, with respect to any Debt Securities held by the
Trust
or a trustee of the Trust, if such trustee of the Trust fails to enforce
its
rights under this Indenture as the holder of Debt Securities held as the
assets
of the Trust after the holders of a majority in aggregate liquidation amount
of
the outstanding Capital Securities of the Trust have so directed in writing
such
trustee, a holder of record of such Capital Securities may, to the fullest
extent permitted by law, institute legal proceedings directly against the
Company to enforce such trustee’s rights under this Indenture without first
instituting any legal proceedings against such trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to
pay
interest or premium, if any, on or principal of the Debt Securities on the
date
such interest, premium, if any, or principal is otherwise due and payable
(or,
in the case of redemption, on the related Optional Redemption Date or the
Special Redemption Date (as the case may be)), the
Company
acknowledges that a holder of outstanding Capital Securities of the Trust
may
directly institute a proceeding against the Company for enforcement of
payment
to such holder directly of the principal of or premium, if any, or interest
on
the Debt Securities having an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder on or after
the
respective due date (or Optional Redemption Date or Special Redemption
Date (as
the case may be)) specified in the Debt Securities.
ARTICLE
XV
SUBORDINATION
OF DEBT SECURITIES
Section
15.01
Agreement
to Subordinate
.
The
Company covenants and agrees, and each holder of Debt Securities issued
hereunder and under any supplemental indenture (the “Additional Provisions”) by
such holder’s acceptance thereof likewise covenants and agrees, that all Debt
Securities shall be issued subject to the provisions of this Article XV;
and
each holder of a Debt Security, whether upon original issue or upon transfer
or
assignment thereof, accepts and agrees to be bound by such
provisions.
The
payment by the Company of the payments due on all Debt Securities issued
hereunder and under any Additional Provisions shall, to the extent and in
the
manner hereinafter set forth, be subordinated and junior in right of payment
to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No
provision of this Article XV shall prevent the occurrence of any default
or
Event of Default hereunder.
Section
15.02
Default
on Senior Indebtedness
.
In
the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other amount due on any Senior
Indebtedness of the Company following any applicable grace period, or in
the
event that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, and such acceleration has not been rescinded
or canceled and such Senior Indebtedness has not been paid in full, then,
in
either case, no payment shall be made by the Company with respect to the
payments due on the Debt Securities.
In
the
event that, notwithstanding the foregoing, any payment shall be received
by the
Trustee or any Securityholder when such payment is prohibited by the preceding
paragraph of this Section, such payment shall, subject to Section 15.06,
be held
in trust for the benefit of, and shall be paid over or delivered to, the
holders
of Senior Indebtedness or their respective representatives, or to the trustee
or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only
to the
extent that the holders of the Senior Indebtedness (or their representative
or
representatives or trustee) notify the Trustee in writing within 90 days
of such
payment of the amounts then due and owing on the Senior Indebtedness and
only
the amounts specified in such notice to the Trustee shall be paid to the
holders
of Senior Indebtedness.
Section
15.03
Liquidation;
Dissolution; Bankruptcy
.
Upon
any
payment by the Company or distribution of assets of the Company of any kind
or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding-up, liquidation or reorganization of the Company, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the Company
shall
first be paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on the Debt
Securities; and upon any such dissolution, winding-up, liquidation or
reorganization, any payment by the Company, or distribution of assets of
the
Company of any kind or character, whether in cash, property or securities,
to
which the Securityholders or the Trustee would be entitled to receive from
the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee,
agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under this Indenture if received by them or it, directly
to
the holders of Senior Indebtedness of the Company (pro rata to such holders
on
the basis of the respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or representatives,
or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in
full, in money or money’s worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before
any
payment or distribution is made to the Securityholders or to the
Trustee.
In
the
event that, notwithstanding the foregoing, any payment or distribution of
assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing shall be received by the Trustee
or any
Securityholder before all Senior Indebtedness of the Company is paid in full,
or
provision is made for such payment in money in accordance with its terms,
such
payment or distribution shall be held in trust for the benefit of, and shall
be
paid over or delivered to, the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated
by
the Company, for application to the payment of all Senior Indebtedness of
the
Company remaining unpaid to the extent necessary to pay such Senior Indebtedness
in full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the holders of
such
Senior Indebtedness.
For
purposes of this Article XV, the words “cash, property or securities” shall not
be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided
for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect
to
the Debt Securities to the payment of all Senior Indebtedness of the Company,
that may at the time be outstanding,
provided
,
that
(a) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (b) the rights
of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation
of
the Company with,
or
the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance, transfer or other
disposition of its property as an entirety, or substantially as an entirety,
to
another corporation upon the terms and conditions provided for in Article
XI of
this Indenture shall not be deemed a dissolution, winding-up, liquidation
or
reorganization for the purposes of this Section if such other corporation
shall,
as a part of such consolidation, merger, conveyance or transfer, comply
with the
conditions stated in Article XI of this Indenture. Nothing in Section 15.02
or
in this Section shall apply to claims of, or payments to, the Trustee under
or
pursuant to Section 6.06 of this Indenture.
Section
15.04
Subrogation
.
Subject
to the payment in full of all Senior Indebtedness of the Company, the
Securityholders shall be subrogated to the rights of the holders of such
Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
payments due on the Debt Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of such
Senior
Indebtedness of any cash, property or securities to which the Securityholders
or
the Trustee would be entitled except for the provisions of this Article XV,
and
no payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Securityholders or
the
Trustee, shall, as between the Company, its creditors other than holders
of
Senior Indebtedness of the Company, and the holders of the Debt Securities
be
deemed to be a payment or distribution by the Company to or on account of
such
Senior Indebtedness. It is understood that the provisions of this Article
XV
are, and are intended, solely for the purposes of defining the relative rights
of the holders of the Debt Securities, on the one hand, and the holders of
such
Senior Indebtedness, on the other hand.
Nothing
contained in this Article XV or elsewhere in this Indenture, any Additional
Provisions or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness
of the
Company, and the holders of the Debt Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the holders of the Debt
Securities all payments on the Debt Securities as and when the same shall
become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of the Debt Securities and creditors
of the Company other than the holders of Senior Indebtedness of the Company,
nor
shall anything herein or therein prevent the Trustee or the holder of any
Debt
Security from exercising all remedies otherwise permitted by applicable law
upon
default under this Indenture, subject to the rights, if any, under this Article
XV of the holders of such Senior Indebtedness in respect of cash, property
or
securities of the Company received upon the exercise of any such
remedy.
Upon
any
payment or distribution of assets of the Company referred to in this Article
XV,
the Trustee, subject to the provisions of Article VI of this Indenture, and
the
Securityholders shall be entitled to conclusively rely upon any order or
decree
made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent
or other Person making such payment or distribution, delivered to the Trustee
or
to the Securityholders, for the purposes of ascertaining the Persons entitled
to
participate in such distribution, the holders of Senior Indebtedness and
other
indebtedness of the Company, the
amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XV.
Section
15.05
Trustee
to Effectuate Subordination
.
Each
Securityholder, by such Securityholder’s acceptance thereof, authorizes and
directs the Trustee on such Securityholder’s behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder’s attorney-in-fact for
any and all such purposes.
Section
15.06
Notice
by the Company
.
The
Company shall give prompt written notice to a Responsible Officer of the
Trustee
at the Principal Office of the Trustee of any fact known to the Company that
would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Debt Securities pursuant to the provisions of this Article
XV.
Notwithstanding the provisions of this Article XV or any other provision
of this
Indenture or any Additional Provisions, the Trustee shall not be charged
with
knowledge of the existence of any facts that would prohibit the making of
any
payment of moneys to or by the Trustee in respect of the Debt Securities
pursuant to the provisions of this Article XV unless and until a Responsible
Officer of the Trustee at the Principal Office of the Trustee shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt
of any
such written notice, the Trustee, subject to the provisions of Article VI
of
this Indenture, shall be entitled in all respects to assume that no such
facts
exist;
provided
,
however
,
that if
the Trustee shall not have received the notice provided for in this Section
at
least two Business Days prior to the date upon which by the terms hereof
any
money may become payable for any purpose (including, without limitation,
the
payment of the principal of or premium, if any, or interest on any Debt
Security), then, anything herein contained to the contrary notwithstanding,
the
Trustee shall have full power and authority to receive such money and to
apply
the same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
The
Trustee, subject to the provisions of Article VI of this Indenture, shall
be
entitled to conclusively rely on the delivery to it of a written notice by
a
Person representing himself or herself to be a holder of Senior Indebtedness
of
the Company (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder
or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder
of such
Senior Indebtedness to participate in any payment or distribution pursuant
to
this Article XV, the Trustee may request such Person to furnish evidence
to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to
participate in such payment or distribution and any other facts pertinent
to the
rights of such Person under this Article XV, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
Section
15.07
Rights
of the Trustee; Holders of Senior Indebtedness
.
The
Trustee, in its individual capacity, shall be entitled to all the rights
set
forth in this Article XV in respect of any Senior Indebtedness at any time
held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture or any Additional Provisions shall deprive the
Trustee
of any of its rights as such holder.
With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants
or
obligations with respect to the holders of such Senior Indebtedness shall
be
read into this Indenture or any Additional Provisions against the Trustee.
The
Trustee shall not owe or be deemed to owe any fiduciary duty to the holders
of
such Senior Indebtedness and, subject to the provisions of Article VI of
this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company
or
any other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
Nothing
in this Article XV shall apply to claims of, or payments to, the Trustee
under
or pursuant to Section 6.06.
Section
15.08
Subordination
May Not Be Impaired
.
No
right
of any present or future holder of any Senior Indebtedness of the Company
to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by
any
noncompliance by the Company, with the terms, provisions and covenants of
this
Indenture, regardless of any knowledge thereof that any such holder may have
or
otherwise be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (a) change the manner,
place
or terms of payment or extend the time of payment of, or renew or alter,
such
Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior
Indebtedness or any instrument evidencing the same or any agreement under
which
such Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
such
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company or any other Person.
Wilmington
Trust Company, in its capacity as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above
set
forth.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized, as of the
day
and year first above written.
WASHINGTON
TRUST BANCORP, INC.
By:
/s/
John C. Warren
Name:
John C. Warren
Title:
Chairman and CEO
WILMINGTON
TRUST COMPANY,
as
Trustee
By:
/s/
Geoffrey J. Lewis
Name:
Geoffrey J. Lewis
Title:
Financial Services Officer
EXHIBIT
A
FORM
OF
DEBT SECURITY
[FORM
OF
FACE OF SECURITY]
[THIS
SECURITY IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN
THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
1
Only applicable if this Debt Security is a Global Debt
Security.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE
DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE COMPANY
OR
ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE COMPANY
WAS THE HOLDER OF THIS
SECURITY
OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii)
SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE
LAW, ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT
(“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, 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) PURSUANT
TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO
AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT
OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES
ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY
OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO IT
IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM
THE
COMPANY. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY
ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL
COMPLY
WITH THE FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
OR
PARTICIPATION HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND
HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT
AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A
PLAN TO
WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE,
OR (ii) SUCH PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE
IS NO
APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF
THIS SECURITY IN DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED
NOT TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”). THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE
DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY,
IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
AND IS NOT SECURED.
Fixed/Floating
Rate Junior Subordinated Debt Security due 2035
of
WASHINGTON
TRUST BANCORP, INC.
Washington
Trust Bancorp, Inc., a bank holding company incorporated in the State of
Rhode
Island (the “Company”, which term includes any successor permitted under the
Indenture
(as defined herein)), for value received, promises to pay to Wilmington
Trust
Company, not in its individual capacity but solely as Institutional Trustee
for
WT Capital Trust II, a Delaware statutory trust, or registered assigns,
the
principal amount of FOURTEEN MILLION FOUR HUNDRED THIRTY-THREE THOUSAND
Dollars
($14,433,000) on November 23, 2035 (the “Maturity Date”) (or any Optional
Redemption Date or the Special Redemption Date, each as defined herein,
or any
earlier date of acceleration of the maturity of this Debt Security), and
to pay
interest on the outstanding principal amount of this Debt Security from
August
29, 2005, or from the most recent Interest Payment Date (as defined below)
to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on February 23, May 23, August
23 and
November 23 of each year, commencing on November 23, 2005 (each, an “Interest
Payment Date”), at a per annum rate (the “Interest Rate”) equal to (i) with
respect to any Interest Period (as defined in the Indenture) prior to the
Interest Period commencing on the Interest Payment Date in November, 2010,
5.96% and (ii) with respect to any Interest Period commencing on or after
the
Interest Payment Date in November, 2010, LIBOR (as defined in the
Indenture), as determined on the LIBOR Determination Date (as defined in
the
Indenture) for such Interest Period plus 1.45% (the “Interest Rate”)
(
provided
that the
Interest Rate for any Interest Period commencing on or after the Interest
Payment Date in November, 2010 may not exceed the highest rate permitted
by
New York law, as the same may be modified by United States law of general
application) until the principal hereof shall have been paid or duly provided
for, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at an annual rate equal to the then applicable
Interest Rate, compounded quarterly. The amount of interest payable shall
be
computed with respect to any Interest Period prior to the Interest Period
commencing on the Interest Payment Date in November, 2010, on the
basis of
a 360-day year consisting of twelve 30-day months and (ii) with respect
to any
Interest Period commencing on or after the Interest Payment Date in
November, 2010, on the basis of a 360-day year and the actual number
of
days elapsed in such Interest Period.
The
interest installment so payable, and punctually paid or duly provided for,
on
any Interest Payment Date will, as provided in the Indenture, be paid to
the
Person in whose name this Debt Security (or one or more Predecessor Securities,
as defined in the Indenture) is registered at the close of business on the
“regular record date” for such interest installment, which shall be the
fifteenth day prior to such Interest Payment Date, whether or not such day
is a
Business Day (as defined herein). Any such interest installment (other than
Deferred Interest (as defined herein)) not punctually paid or duly provided
for
shall forthwith cease to be payable to the holders on such regular record
date
and may be paid to the Person in whose name this Debt Security (or one or
more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the holders of the Debt Securities
not less than 10 days prior to such special record date, all as more fully
provided in the Indenture.
Payment
of the principal of and premium, if any, and interest on this Debt Security
due
on the Maturity Date, any Optional Redemption Date or the Special Redemption
Date, as the case may be, shall be made in immediately available funds against
presentation and surrender of this Debt Security at the office or agency
of the
Trustee maintained for that purpose
in
Wilmington, Delaware, or at the office or agency of any other Paying Agent
appointed by the Company maintained for that purpose in Wilmington, Delaware
or
Providence, Rhode Island. Payment of interest on this Debt Security due
on any
Interest Payment Date other than the Maturity Date, any Optional Redemption
Date
or the Special Redemption Date, as the case may be, shall be made at the
option
of the Company by check mailed to the holder thereof at such address as
shall
appear in the Debt Security Register or by wire transfer of immediately
available funds to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debt Security
is
the Institutional Trustee, payment of the principal of and premium, if
any, and
interest on this Debt Security shall be made in immediately available funds
when
due at such place and to such account as may be designated by the Institutional
Trustee. All payments in respect of this Debt Security shall be payable
in any
coin or currency of the United States of America that at the time of payment
is
legal tender for payment of public and private debts.
Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date after
the Interest Payment Date in November, 2010, other than the Maturity
Date,
any Optional Redemption Date or the Special Redemption Date, falls on a day
that
is not a Business Day, then any interest payable will be paid on, and such
Interest Payment Date will be moved to, the next succeeding Business Day,
and
additional interest will accrue for each day that such payment is delayed
as a
result thereof. If any Interest Payment Date on or prior to the Interest
Payment
Date in November, 2010, the Maturity Date, any Optional Redemption
Date or
the Special Redemption Date falls on a day that is not a Business Day, then
the
principal, premium, if any, and/or interest payable on such date will be
paid on
the next succeeding Business Day, and no additional interest will accrue
in
respect of such payment made on such next succeeding Business Day.
So
long
as no Event of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or
(i)
of the Indenture has occurred and is continuing, the Company shall have the
right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the
term
of the Debt Securities, for up to 20 consecutive quarterly periods (each
such
extended interest payment period, together with all previous and further
consecutive extensions thereof, is referred to herein as an “Extension Period”).
No Extension Period may end on a date other than an Interest Payment Date
or
extend beyond the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be. During any Extension Period, interest
will
continue to accrue on the Debt Securities, and interest on such accrued interest
(such accrued interest and interest thereon referred to herein as “Deferred
Interest”) will accrue at an annual rate equal to the Interest Rate applicable
during such Extension Period, compounded quarterly from the date such Deferred
Interest would have been payable were it not for the Extension Period, to
the
extent permitted by applicable law. No interest or Deferred Interest (except
any
Additional Amounts (as defined in the Indenture) that may be due and payable)
shall be due and payable during an Extension Period, except at the end thereof.
At the end of any Extension Period, the Company shall pay all Deferred Interest
then accrued and unpaid on the Debt Securities;
provided
,
however
,
that
during any Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock, (ii)
make
any
payment of principal of or premium, if any, or interest on or repay, repurchase
or redeem any debt securities of the Company that rank
pari
passu
in all
respects with or junior in interest to the Debt Securities or (iii) make
any
payment under any guarantees of the Company that rank in all respects
pari
passu
with or
junior in respect to the Capital Securities Guarantee (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock
of the
Company (A) in connection with any employment contract, benefit plan or
other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment
or
stockholder stock purchase plan or (C) in connection with the issuance
of
capital stock of the Company (or securities convertible into or exercisable
for
such capital stock), as consideration in an acquisition transaction entered
into
prior to such Extension Period, (b) as a result of any exchange or conversion
of
any class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase of fractional interests
in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any stockholder’s rights
plan, or the issuance of rights, stock or other property under any stockholder’s
rights plan, or the redemption or repurchase of rights pursuant thereto
or (e)
any dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks
pari
passu
with or
junior to such stock). Prior to the termination of any Extension Period,
the
Company may further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the Company may commence a new Extension Period,
subject
to the foregoing requirements. The Company must give the Trustee notice
of its
election to begin or extend an Extension Period no later than the close
of
business on the fifteenth Business Day prior to the applicable Interest
Payment
Date.
The
indebtedness evidenced by this Debt Security is, to the extent provided in
the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness (as defined in the Indenture), and this Debt
Security is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debt Security, by accepting the same, (a) agrees
to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on
such holder’s behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the
Trustee such holder’s attorney-in-fact for any and all such purposes. Each
holder hereof, by such holder’s acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding
or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
The
Company waives diligence, presentment, demand for payment, notice of nonpayment,
notice of protest, and all other demands and notices.
This
Debt
Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on
behalf
of the Trustee.
The
provisions of this Debt Security are continued on the reverse side hereof
and
such continued provisions shall for all purposes have the same effect as
though
fully set forth at this place.
This
Debt
Security may contain more than one counterpart of the signature page and
this
Debt Security may be executed and authenticated by the affixing of the signature
of a proper officer of the Company, and the signature of the Trustee providing
authentication, to any 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 the Company had executed, and the Trustee
had
authenticated, a single signature page.
IN
WITNESS WHEREOF, the Company has duly executed this certificate.
WASHINGTON
TRUST BANCORP, INC.
By:
______________________________
Name:
Title:
Dated:
______________________, ____
CERTIFICATE
OF AUTHENTICATION
This
certificate represents Debt Securities referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
the
Trustee
By:
______________________________
Authorized
Officer
Dated:
______________________, ____
[FORM
OF
REVERSE OF SECURITY]
This
Debt
Security is one of a duly authorized series of debt securities of the Company
(collectively, the “Debt Securities”), all issued or to be issued pursuant to an
Indenture (the “Indenture”), dated as of August 29, 2005, duly executed and
delivered between the Company and Wilmington Trust Company, as Trustee (the
“Trustee”), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company
and
the holders of the Debt Securities of which this Debt Security is a
part.
Upon
the
occurrence and continuation of a Tax Event, an Investment Company Event or
a
Capital Treatment Event (each, a “Special Event”), the Company shall have the
right to redeem this Debt Security, at its option, in whole with all other
Debt
Securities but not in part, at any time, within 90 days following the occurrence
of such Special Event (the “Special Redemption Date”), at the Special Redemption
Price (as defined herein).
The
Company shall also have the right to redeem this Debt Security at its option,
in
whole or (provided that all accrued and unpaid interest has been paid on
all
Debt Securities for all Interest Periods terminating on or prior to such
date)
from time to time in part, on any Interest Payment Date on or after November
23,
2010 (each, an “Optional Redemption Date”), at the Optional Redemption Price (as
defined herein).
Any
redemption pursuant to the preceding two paragraphs will be made, subject
to
receipt by the Company of prior approval from the Board of Governors of the
Federal Reserve System (the “Federal Reserve”) if then required under applicable
capital guidelines or policies of the Federal Reserve, upon not less than
30
days’ nor more than 60 days’ prior written notice. If the Debt Securities are
only partially redeemed by the Company, the Debt Securities will be redeemed
pro
rata or by any other method utilized by the Trustee. In the event of redemption
of this Debt Security in part only, a new Debt Security or Debt Securities
for
the unredeemed portion hereof will be issued in the name of the holder hereof
upon the cancellation hereof.
“Optional
Redemption Price” means an amount in cash equal to 100% of the principal amount
of this Debt Security being redeemed plus unpaid interest accrued thereon
to the
related Optional Redemption Date.
“Special
Redemption Price” means, with respect to the redemption of this Debt Security
following a Special Event, an amount in cash equal to 104.00% of the principal
amount of this Debt Security to be redeemed prior to November 23, 2006 and
thereafter equal to the percentage of the principal amount of this Debt Security
that is specified below for the Special Redemption Date plus, in each case,
unpaid interest accrued thereon to the Special Redemption Date:
|
Special
Redemption During the 12-Month
Period
Beginning November 23,
|
Percentage
of Principal Amount
|
|
2006
|
103.20%
|
|
2007
|
102.40%
|
|
2008
|
101.60%
|
|
2009
|
100.80%
|
|
2010
and thereafter
|
100.00%
|
In
case
an Event of Default, as defined in the Indenture, shall have occurred and
be
continuing, the principal of all of the Debt Securities may be declared,
and, in
certain cases, shall
ipso
facto
become,
due and payable, and upon any such declaration of acceleration shall become
due
and payable, in each case, in the manner, with the effect and subject to
the
conditions provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of a majority in aggregate principal amount of the
Debt
Securities at the time outstanding affected thereby, as specified in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
the Indenture or of any supplemental indenture or of modifying in any manner
the
rights of the holders of the Debt Securities;
provided
,
however
,
that no
such supplemental indenture shall, among other things, without the consent
of
the holders of each Debt Security then outstanding and affected thereby
(i) change the Maturity Date of any Debt Security, or reduce the principal
amount thereof or any premium thereon, or reduce the rate (or manner of
calculation of the rate) or extend the time of payment of interest thereon,
or
reduce (other than as a result of the maturity or earlier redemption of any
such
Debt Security in accordance with the terms of the Indenture and such Debt
Security) or increase the aggregate principal amount of Debt Securities then
outstanding, or change any of the redemption provisions, or make the principal
thereof or any interest or premium thereon payable in any coin or currency
other
than United States Dollars, or impair or affect the right of any holder to
institute suit for payment thereof, or (ii) reduce the aforesaid percentage
of Debt Securities the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting
the
holders of a majority in aggregate principal amount of the Debt Securities
at
the time outstanding, on behalf of the holders of all the Debt Securities,
to
waive any past default in the performance of any of the covenants contained
in
the Indenture, or established pursuant to the Indenture, and its consequences,
except (a) a default in payments due in respect of any of the Debt
Securities, (b) in respect of covenants or provisions of the Indenture
which cannot be modified or amended without the consent of the holder of
each
Debt Security affected, or (c) in respect of the covenants of the
Company
relating to its ownership of Common Securities of the Trust. Any such consent
or
waiver by the holder of this Debt Security (unless
revoked
as provided in the Indenture) shall be conclusive and binding upon such
holder
and upon all future holders and owners of this Debt Security and of any
Debt
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation
of such
consent or waiver is made upon this Debt Security.
No
reference herein to the Indenture and no provision of this Debt Security
or of
the Indenture shall alter or impair the obligation of the Company, which
is
absolute and unconditional, to make all payments due on this Debt Security
at
the time and place and at the rate and in the money herein
prescribed.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, this Debt Security is transferable by the holder hereof on the
Debt
Security Register (as defined in the Indenture) of the Company, upon surrender
of this Debt Security for registration of transfer at the office or agency
of
the Trustee in Wilmington, Delaware, or at any other office or agency of
the
Company in Wilmington, Delaware or Providence, Rhode Island, accompanied
by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the holder hereof or such holder’s
attorney duly authorized in writing, and thereupon one or more new Debt
Securities of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such registration of transfer, but the Company
or
the Trustee may require payment of a sum sufficient to cover any tax, fee
or
other governmental charge payable in relation thereto as specified in the
Indenture.
Prior
to
due presentment for registration of transfer of this Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent
and
the Debt Security registrar may deem and treat the holder hereof as the absolute
owner hereof (whether or not this Debt Security shall be overdue and
notwithstanding any notice of ownership or writing hereon) for the purpose
of
receiving payment of the principal of and premium, if any, and interest on
this
Debt Security and for all other purposes, and none of the Company, the Trustee,
any Authenticating Agent, any Paying Agent, any transfer agent or any Debt
Security registrar shall be affected by any notice to the contrary.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, Debt Securities are exchangeable for a like aggregate principal
amount of Debt Securities of different authorized denominations, as requested
by
the holder surrendering the same.
The
Debt
Securities are issuable only in registered certificated form without coupons.
No
recourse shall be had for the payment of the principal of or premium, if
any, or
interest on this Debt Security, or for any claim based hereon, or otherwise
in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer, director, employee or agent, past, present
or future, as such, of the Company or of any predecessor or successor
corporation of the Company, whether by virtue of any constitution, statute
or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by
the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
All
terms
used but not defined in this Debt Security shall have the meanings assigned
to
them in the Indenture.
THIS
DEBT
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID
STATE
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
EXHIBIT
B
FORM
OF
CERTIFICATE OF OFFICER OF THE COMPANY
Pursuant
to Section 3.05 of the Indenture, dated as of August 29, 2005 (as amended
or
supplemented from time to time, the “Indenture”), between Washington Trust
Bancorp, Inc., as issuer (the “Company”), and Wilmington Trust Company, as
trustee, the undersigned certifies that he/she is a [principal executive
officer, principal financial officer or principal accounting officer] of
the
Company and in the course of the performance by the undersigned of his/her
duties as an officer of the Company, the undersigned would normally have
knowledge of any default by the Company in the performance of any covenants
contained in the Indenture, and the undersigned hereby further certifies
that
he/she has no knowledge of any default for the fiscal year ending on __________,
20___ [, except as follows:
specify
each such default and the nature thereof
].
Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings assigned thereto in the Indenture.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________,
20____.
_________________________________
Name
Title:
Exhint 10.8
GUARANTEE
AGREEMENT
WASHINGTON
TRUST BANCORP, INC.
Dated
as
of August 29, 2005
|
ARTICLE
I
|
|
|
|
DEFINITIONS
AND INTERPRETATION
|
|
|
SECTION
1.1
|
Definitions
and Interpretation.
|
1
|
|
|
|
|
|
ARTICLE
II
|
|
|
|
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
|
|
|
SECTION
2.1
|
Powers
and Duties of the Guarantee Trustee.
|
4
|
|
SECTION
2.2
|
Certain
Rights of the Guarantee Trustee.
|
5
|
|
SECTION
2.3
|
Not
Responsible for Recitals or Issuance of Guarantee.
|
7
|
|
SECTION
2.4
|
Events
of Default; Waiver.
|
7
|
|
SECTION
2.5
|
Events
of Default; Notice.
|
8
|
|
|
|
|
|
ARTICLE
III
|
|
|
|
THE
GUARANTEE TRUSTEE
|
|
|
SECTION
3.1
|
The
Guarantee Trustee; Eligibility.
|
8
|
|
SECTION
3.2
|
Appointment,
Removal and Resignation of the Guarantee Trustee.
|
9
|
|
|
|
|
|
ARTICLE
IV
|
|
|
|
GUARANTEE
|
|
|
|
SECTION
4.1
|
Guarantee.
|
9
|
|
SECTION
4.2
|
Waiver
of Notice and Demand.
|
10
|
|
SECTION
4.3
|
Obligations
Not Affected.
|
10
|
|
SECTION
4.4
|
Rights
of Holders.
|
11
|
|
SECTION
4.5
|
Guarantee
of Payment.
|
11
|
|
SECTION
4.6
|
Subrogation.
|
11
|
|
SECTION
4.7
|
Independent
Obligations.
|
12
|
|
SECTION
4.8
|
Enforcement.
|
12
|
|
|
|
|
|
ARTICLE
V
|
|
|
|
LIMITATION
OF TRANSACTIONS; SUBORDINATION
|
|
|
SECTION
5.1
|
Limitation
of Transactions.
|
12
|
|
SECTION
5.2
|
Ranking.
|
13
|
|
|
|
|
|
ARTICLE
VI
|
|
|
|
TERMINATION
|
|
|
|
SECTION
6.1
|
Termination.
|
13
|
|
|
|
|
|
ARTICLE
VII
|
|
|
|
INDEMNIFICATION
|
|
|
|
SECTION
7.1
|
Exculpation.
|
13
|
|
SECTION
7.2
|
Indemnification.
|
14
|
|
SECTION
7.3
|
Compensation;
Reimbursement of Expenses.
|
15
|
|
|
|
|
|
ARTICLE
VIII
|
|
|
|
MISCELLANEOUS
|
|
|
|
SECTION
8.1
|
Successors
and Assigns.
|
15
|
|
SECTION
8.2
|
Amendments.
|
16
|
|
SECTION
8.3
|
Notices.
|
16
|
|
SECTION
8.4
|
Benefit.
|
16
|
|
SECTION
8.5
|
Governing
Law.
|
16
|
|
SECTION
8.6
|
Counterparts.
|
17
|
GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (the “Guarantee”), dated as of August 29, 2005, is executed
and delivered by Washington Trust Bancorp, Inc., a financial holding company
incorporated in the State of Rhode Island (the “Guarantor”), and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of WT Capital Trust II, a Delaware
statutory trust (the “Issuer”).
WHEREAS,
pursuant to an Amended and Restated Declaration of Trust (the “Declaration”),
dated as of August 29, 2005, among the trustees named therein of the Issuer,
Washington Trust Bancorp, Inc., as sponsor, and the Holders from time to
time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof securities, having an aggregate liquidation amount
of
$14,000,000, designated in the Declaration as MMCapS
SM
(the
“Capital Securities”); and
WHEREAS,
as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth
in
this Guarantee, to pay to the Holders of Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms
and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the purchase by each Holder of the Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
SECTION
1.1
Definitions
and Interpretation
.
In
this
Guarantee, unless the context otherwise requires:
(a)
capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b)
a
term
defined anywhere in this Guarantee has the same meaning throughout;
(c)
all
references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;
(d)
all
references in this Guarantee to Articles and Sections are to Articles and
Sections of this Guarantee, unless otherwise specified;
(e)
terms
defined in the Declaration as of the date of execution of this Guarantee
have
the same meanings when used in this Guarantee, unless otherwise defined in
this
Guarantee or unless the context otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
“Beneficiaries”
means any Person to whom the Issuer is or hereafter becomes indebted or
liable.
“Common
Securities” has the meaning specified in the Declaration.
“Corporate
Trust Office” means the office of the Guarantee Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at all times shall be located within the United States and at the time
of
the execution of this Guarantee shall be Rodney Square North, 1100 North
Market
Street, Wilmington, DE 19890-0001.
“Covered
Person” means any Holder of Capital Securities.
“Debenture
Issuer” means Washington Trust Bancorp, Inc. or any successor entity resulting
from any consolidation, amalgamation, merger or other business combination,
in
its capacity as issuer of the Debentures.
“Debentures”
means the junior subordinated debentures of the Debenture Issuer that are
designated in the Indenture as the “Fixed/Floating Rate Junior Subordinated Debt
Securities due 2035” and held by the Institutional Trustee (as defined in the
Declaration) of the Issuer.
“Event
of
Default” has the meaning set forth in Section 2.4.
“Guarantee
Payments” means the following payments or distributions, without duplication,
with respect to the Capital Securities, to the extent not paid or made by
the
Issuer: (i) any accrued and unpaid Distributions (as defined in the Declaration)
which are required to be paid on such Capital Securities to the extent the
Issuer has funds available in the Property Account (as defined in the
Declaration) therefor at such time, (ii) the price payable upon the redemption
of any Capital Securities to the extent the Issuer has funds available in
the
Property Account therefor at such time, with respect to any Capital Securities
that are (1) called for redemption by the Issuer or (2) mandatorily redeemed
by
the Issuer, in each case, in accordance with the terms of such Capital
Securities, and (iii) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders of the Capital Securities in exchange
therefor as provided in the Declaration), the lesser of (a) the aggregate
of the
liquidation amount of the Capital Securities and all accrued and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Issuer has funds available in the Property Account therefor at such time,
and (b) the amount of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer after satisfaction of liabilities
to
creditors of the Issuer as required by applicable law (in either case, the
“Liquidation Distribution”).
“Guarantee
Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of
this
Guarantee and thereafter means each such Successor Guarantee
Trustee.
“Holder”
means any Person in whose name any Capital Securities are registered on the
books and records of the Issuer;
provided
,
however
,
that,
in determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, “Holder”
shall not include the Guarantor or any Affiliate of the Guarantor.
“Indemnified
Person” means the Guarantee Trustee (including in its individual capacity), any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents
of
the Guarantee Trustee.
“Indenture”
means the Indenture, dated as of August 29, 2005, between the Debenture Issuer
and Wilmington Trust Company, not in its individual capacity but solely as
trustee, and any indenture supplemental thereto pursuant to which the Debentures
are to be issued to the Institutional Trustee of the Issuer.
“Liquidation
Distribution” has the meaning set forth in the definition of “Guarantee
Payments” herein.
“Majority
in liquidation amount of the Capital Securities” means Holder(s) of outstanding
Capital Securities, voting together as a class, but separately from the holders
of Common Securities, of more than 50% of the aggregate liquidation amount
(including the amount that would be paid upon the redemption, liquidation
or
otherwise on the date upon which the voting percentages are determined, plus
unpaid Distributions accrued thereon to such date) of all Capital Securities
then outstanding.
“Obligations”
means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Issuer, other than obligations of the Issuer to pay to holders
of any Trust Securities the amounts due such holders pursuant to the terms
of
the Trust Securities.
“Officer’s
Certificate” means, with respect to any Person, a certificate signed by one
Authorized Officer of such Person. Any Officer’s Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a)
a
statement that such officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by such officer in rendering the Officer’s 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.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Responsible
Officer” means, with respect to the Guarantee Trustee, any officer within the
Corporate Trust Office of the Guarantee Trustee with direct responsibility
for
the administration of any matters relating to this Guarantee, including any
vice
president, any assistant vice president, any secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or other officer
of
the Corporate Trust Office of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.
“Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.
“Trust
Securities” means the Common Securities and the Capital Securities.
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION
2.1
Powers
and Duties of the Guarantee Trustee
.
(a)
This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Capital Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Capital Securities exercising
his or
her rights pursuant to Section 4.4 (b) or to a Successor Guarantee Trustee
on
acceptance by such Successor Guarantee Trustee of its appointment to act
as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and
such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of
such
Successor Guarantee Trustee.
(b)
If
an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce
this
Guarantee for the benefit of the Holders of the Capital Securities.
(c)
The
Guarantee Trustee, before the occurrence of any Event of Default and after
the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee, and no implied covenants shall be read into this Guarantee against
the Guarantee Trustee. In case an Event of Default has occurred (that has
not
been cured or waived pursuant to Section 2.4(b)) and is actually known to
a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and
use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own
affairs.
(d)
No
provision of this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to
act,
or its own willful misconduct or bad faith, except that:
(i)
prior
to
the occurrence of any Event of Default and after the curing or waiving of
all
Events of Default that may have occurred:
(A)
the
duties and obligations of the Guarantee Trustee shall be determined solely
by
the express provisions of this Guarantee, and the Guarantee Trustee shall
not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B)
in
the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee
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 Guarantee Trustee and conforming to the requirements of this Guarantee;
but
in the case of any such certificates or opinions furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same
to
determine whether or not on their face they conform to the requirements of
this
Guarantee;
(ii)
the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall
be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii)
the
Guarantee 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 written direction
of the Holders of 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 Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee; and
(iv)
no
provision of this Guarantee shall require the Guarantee 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 Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the
terms
of this Guarantee, or security and indemnity, reasonably satisfactory to
the
Guarantee Trustee, against such risk or liability is not reasonably assured
to
it.
SECTION
2.2
Certain
Rights of the Guarantee Trustee
.
(a)
Subject
to the provisions of Section 2.1:
(i)
The
Guarantee Trustee may conclusively rely, and shall be fully protected in
acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by
the
proper party or parties.
(ii)
Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.
(iii)
Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem
it
desirable that a matter be proved or established before taking, suffering
or
omitting any action hereunder, the Guarantee Trustee (unless other evidence
is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv)
The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument or other writing (or any rerecording, refiling
or
reregistration thereof).
(v)
The
Guarantee Trustee may consult with counsel of its selection, and the advice
or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may
include any of its employees. The Guarantee Trustee shall have the right
at any
time to seek instructions concerning the administration of this Guarantee
from
any court of competent jurisdiction.
(vi)
The
Guarantee Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Guarantee at the request or direction of any
Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against
the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including
such
reasonable advances as may be requested by the Guarantee Trustee; provided,
however, that nothing contained in this Section 2.2(a)(vi) shall be taken
to
relieve the Guarantee Trustee, upon the occurrence of an Event of Default,
of
its obligation to exercise the rights and powers vested in it by this
Guarantee.
(vii)
The
Guarantee Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii)
The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
with
due care by it hereunder.
(ix)
Any
action taken by the Guarantee Trustee or its agents hereunder shall bind
the
Holders of the Capital Securities, and the signature of the Guarantee Trustee
or
its agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee’s or its agent’s taking such action.
(x)
Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or
right
or taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in liquidation amount of the
Capital
Securities, (B) may refrain from enforcing such remedy or right or taking
such
other action until such instructions are received and (C) shall be protected
in
conclusively relying on or acting in accordance with such
instructions.
(xi)
The
Guarantee 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
Guarantee.
(b)
No
provision of this Guarantee shall be deemed to impose any duty or obligation
on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which
it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or
acts or
to exercise any such right, power, duty or obligation. No permissive power
or
authority available to the Guarantee Trustee shall be construed to be a
duty.
SECTION
2.3
Not
Responsible for Recitals or Issuance of Guarantee
.
The
recitals contained in this Guarantee shall be taken as the statements of
the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
SECTION
2.4
Events
of Default; Waiver
.
(a)
An
“Event
of Default” under this Guarantee will occur upon the failure of the Guarantor to
perform any of its payment or other obligations hereunder.
(b)
The
Holders of a Majority in liquidation amount of the Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities,
waive
any
past Event of Default and its consequences. Upon such waiver, any such
Event of
Default shall cease to exist, and shall be deemed to have been cured, for
every
purpose of this Guarantee, but no such waiver shall extend to any subsequent
or
other default or Event of Default or impair any right consequent
thereon.
SECTION
2.5
Events
of Default; Notice
.
(a)
The
Guarantee Trustee shall, within 90 days after the occurrence of an Event
of
Default, transmit by mail, first class postage prepaid, to the Holders of
the
Capital Securities, notices of all Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, however, that the Guarantee
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Guarantee Trustee in good faith determines that
the
withholding of such notice is in the interests of the Holders of the Capital
Securities.
(b)
The
Guarantee Trustee shall not be charged with knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice thereof from
the
Guarantor or a Holder of the Capital Securities, or a Responsible Officer
of the
Guarantee Trustee charged with the administration of this Guarantee shall
have
actual knowledge thereof.
ARTICLE
III
THE
GUARANTEE TRUSTEE
SECTION
3.1
The
Guarantee Trustee; Eligibility
.
(a)
There
shall at all times be a Guarantee Trustee which shall:
(i)
not
be an
Affiliate of the Guarantor; and
(ii)
be
a
corporation or national association organized and doing business under the
laws
of the United States of America or any state thereof or of the District of
Columbia, or Person authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by federal,
state or District of Columbia authority. If such corporation or national
association publishes reports of condition at least annually, pursuant to
law or
to the requirements of the supervising or examining authority referred to
above,
then, for the purposes of this Section 3.1(a)(ii), the combined capital and
surplus of such corporation or national association shall be deemed to be
its
combined capital and surplus as set forth in its most recent report of condition
so published.
(b)
If
at any
time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and
with
the effect set forth in Section 3.2(c).
(c)
If
the
Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall
either
eliminate such interest or resign to the extent and in the manner provided
by,
and subject to, this Guarantee.
SECTION
3.2
Appointment,
Removal and Resignation of the Guarantee Trustee
.
(a)
Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b)
The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a)
until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c)
The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d)
If
no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within 60 days after delivery of an instrument
of removal or resignation, the Guarantee Trustee resigning or being removed
may
petition any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e)
No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f)
Upon
termination of this Guarantee or removal or resignation of the Guarantee
Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued
to
the date of such termination, removal or resignation.
ARTICLE
IV
GUARANTEE
SECTION
4.1
Guarantee
.
(a)
The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by
the
Issuer), as and when due, regardless of any defense (except defense of payment
by the Issuer), right of set-off or counterclaim that the Issuer may have
or
assert. The Guarantor’s obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders
or by
causing the Issuer to pay such amounts to the Holders.
(b)
The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer
and
in the event any such Obligation is not so assumed, subject to the terms
and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any
and all
Obligations to such Beneficiaries. This Guarantee is intended to be for the
Beneficiaries who have received notice hereof.
SECTION
4.2
Waiver
of Notice and Demand
.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
SECTION
4.3
Obligations
Not Affected
.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a)
the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term
or
condition relating to the Capital Securities to be performed or observed
by the
Issuer;
(b)
the
extension of time for the payment by the Issuer of all or any portion of
the
Distributions, the price payable upon the redemption of the Capital Securities,
the Liquidation Distribution or any other sums payable under the terms of
the
Capital Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital Securities
(other than an extension of time for the payment of the Distributions, the
price
payable upon the redemption of the Capital Securities, the Liquidation
Distribution or other sums payable that results from the extension of any
interest payment period on the Debentures);
(c)
any
failure, omission, delay or lack of diligence on the part of the Holders
to
enforce, assert or exercise any right, privilege, power or remedy conferred
on
the Holders pursuant to the terms of the Capital Securities, or any action
on
the part of the Issuer granting indulgence or extension of any
kind;
(d)
the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e)
any
invalidity of, or defect or deficiency in, the Capital Securities;
(f)
the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g)
any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section
4.3
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain consent
of,
the Guarantor with respect to the happening of any of the
foregoing.
SECTION
4.4
Rights
of Holders
.
(a)
The
Holders of a Majority in liquidation amount of the Capital Securities have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the Guarantee Trustee in respect of this Guarantee or
to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee; provided, however, that (subject to Sections 2.1 and
2.2)
the Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee shall determine that the actions so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or if the Guarantee Trustee being advised by legal counsel determines that
the
action or proceeding so directed may not lawfully be taken or if the Guarantee
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors or trustees and/or Responsible Officers
shall
determine that the action or proceeding so directed would involve the Guarantee
Trustee in personal liability.
(b)
Any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy to
require
that any such action be brought first against the Issuer, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.
SECTION
4.5
Guarantee
of Payment
.
This
Guarantee creates a guarantee of payment and not of collection.
SECTION
4.6
Subrogation
.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Issuer in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee; provided, however, that the Guarantor
shall
not (except to the extent required by applicable provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation
or
any indemnity, reimbursement or other agreement, in all cases as a result
of
payment under this Guarantee, if, after giving effect to any such payment,
any
amounts are due and unpaid under this Guarantee. If any amount shall be paid
to
the Guarantor in violation of the preceding sentence, the Guarantor agrees
to
hold such amount in trust for the Holders and to pay over such amount to
the
Holders.
SECTION
4.7
Independent
Obligations
.
The
Guarantor acknowledges that its obligations hereunder are independent of
the
obligations of the Issuer with respect to the Capital Securities and that
the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
SECTION
4.8
Enforcement
.
A
Beneficiary may enforce the Obligations of the Guarantor contained in Section
4.1(b) directly against the Guarantor, and the Guarantor waives any right
or
remedy to require that any action be brought against the Issuer or any other
person or entity before proceeding against the Guarantor.
The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee; provided, however, that the Guarantor shall not (except
to
the extent required by applicable provisions of law) be entitled to enforce
or
exercise any rights that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this
Guarantee, if, after giving effect to such payment, any amounts are due and
unpaid under this Guarantee. If any amount shall be paid to the Guarantor
in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in
trust for the Beneficiaries and to pay over such amount to the
Beneficiaries.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
SECTION
5.1
Limitation
of Transactions
.
So
long
as any Capital Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or (b) Debenture Issuer shall have
selected an Extension Period as provided in the Indenture and such period,
or
any extension thereof, shall have commenced and be continuing, then the
Guarantor may not (x) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to,
any of
the Guarantor’s capital stock, (y) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt securities
of the
Guarantor that rank in all respects
pari
passu
with or
junior in interest to the Debentures or (z) make any payment under any
guarantees of the Guarantor that rank in all respects
pari
passu
with or
junior in interest to this Guarantee (other than (i) repurchases, redemptions
or
other acquisitions of shares of capital stock of the Guarantor (A) in connection
with any employment contract, benefit plan or other similar arrangement with
or
for the benefit of one or more employees, officers, directors, or consultants,
(B) in connection with a dividend reinvestment or stockholder stock purchase
plan or (C) in connection with the issuance of capital stock of the Guarantor
(or securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the occurrence
of the Event of Default or the
applicable
Extension Period, (ii) as a result of any exchange or conversion of any
class or
series of the Guarantor’s capital stock (or any capital stock of a subsidiary of
the Guarantor) for any class or series of the Guarantor’s capital stock or of
any class or series of the Guarantor’s indebtedness for any class or series of
the Guarantor’s capital stock, (iii) the purchase of fractional interests in
shares of the Guarantor’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(iv) any declaration of a dividend in connection with any stockholder’s rights
plan, or the issuance of rights, stock or other property under any stockholder’s
rights plan, or the redemption or repurchase of rights pursuant thereto,
or (v)
any dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks
pari
passu
with or
junior in interest to such stock).
SECTION
5.2
Ranking
.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will
rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance
thereof, each Holder of Capital Securities agrees to the foregoing provisions
of
this Guarantee and the other terms set forth herein.
ARTICLE
VI
TERMINATION
SECTION
6.1
Termination
.
This
Guarantee shall terminate as to the Capital Securities (i) upon full payment
of
the price payable upon redemption of all Capital Securities then outstanding,
(ii) upon the distribution of all of the Debentures to the Holders of all
of the
Capital Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon dissolution of the Issuer. This Guarantee
will continue to be effective or will be reinstated, as the case may be,
if at
any time any Holder of Capital Securities must restore payment of any sums
paid
under the Capital Securities or under this Guarantee.
ARTICLE
VII
INDEMNIFICATION
SECTION
7.1
Exculpation
.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages
or
otherwise to the Guarantor or any Covered Person for any loss, damage or
claim
incurred by reason of any act or omission of such Indemnified Person in good
faith in accordance with this Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred
on
such Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim
incurred
by reason of such Indemnified Person’s negligence, willful misconduct or bad
faith with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon
the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person
as
to matters the Indemnified Person reasonably believes are within such other
Person’s professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the
value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions
to
Holders of Capital Securities might properly be paid.
SECTION
7.2
Indemnification
.
(a)
The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage,
claim
or expense incurred without negligence, willful misconduct or bad faith on
the
part of the Indemnified Person, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
but not
limited to the costs and expenses (including reasonable legal fees and expenses)
of the Indemnified Person defending itself against, or investigating, any
claim
or liability in connection with the exercise or performance of any of the
Indemnified Person’s powers or duties hereunder. The obligation to indemnify as
set forth in this Section 7.2 shall survive the resignation or removal of
the
Guarantee Trustee and the termination of this Guarantee.
(b)
Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of
the
commencement of any action, such Indemnified Person will, if a claim in respect
thereof is to be made against the Guarantor under this Section 7.2, notify
the
Guarantor in writing of the commencement thereof; but the failure so to notify
the Guarantor (i) will not relieve the Guarantor from liability under paragraph
(a) above unless and to the extent that the Guarantor did not otherwise learn
of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve
the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor
shall
be entitled to appoint counsel of the Guarantor’s choice at the Guarantor’s
expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter
be
responsible for the fees and expenses of any separate counsel retained by
the
Indemnified Person or Persons except as set forth below); provided, however,
that such counsel shall be satisfactory to the Indemnified Person.
Notwithstanding the Guarantor’s election to appoint counsel to represent the
Indemnified Person in any action, the Indemnified Person shall have the right
to
employ separate counsel (including local counsel), and the Guarantor shall
bear
the reasonable fees, costs and expenses of such separate counsel, if (i)
the use
of counsel chosen by the Guarantor to represent the Indemnified Person would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it and/or other
Indemnified Persons
which
are
different from or additional to those available to the Guarantor, (iii)
the
Guarantor shall not have employed counsel satisfactory to the Indemnified
Person
to represent the Indemnified Person within a reasonable time after notice
of the
institution of such action or (iv) the Guarantor shall authorize the Indemnified
Person to employ separate counsel at the expense of the Guarantor. The
Guarantor
will not, without the prior written consent of the Indemnified Persons,
settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the
Indemnified Persons are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release
of each Indemnified Person from all liability arising out of such claim,
action,
suit or proceeding.
SECTION
7.3
Compensation;
Reimbursement of Expenses
.
The
Guarantor agrees:
(a)
to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to 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); and
(b)
except
as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred
or made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents
and
counsel), except any such expense, disbursement or advance as may be
attributable to the negligence, willful misconduct or bad faith of the Guarantee
Trustee.
The
provisions of this Section 7.3 shall survive the resignation or removal of
the
Guarantee Trustee and the termination of this Guarantee.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1
Successors
and Assigns
.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with any merger or consolidation of the Guarantor with
or
into another entity or any sale, transfer or lease of the Guarantor’s assets to
another entity, in each case to the extent permitted under the Indenture,
the
Guarantor may not assign its rights or delegate its obligations under this
Guarantee without the prior approval of the Holders of a Majority in liquidation
amount of the Capital Securities.
SECTION
8.2
Amendments
.
Except
with respect to any changes that do not adversely affect the powers,
preferences, rights or interests of Holders of the Capital Securities in
any
material respect (in which case no approval of Holders will be required),
this
Guarantee may be amended only with the prior approval of the Holders of a
Majority in liquidation amount of the Capital Securities. The provisions
of the
Declaration with respect to amendments thereof shall apply equally with respect
to amendments of the Guarantee.
SECTION
8.3
Notices
.
All
notices provided for in this Guarantee shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied or mailed by
first
class mail, as follows:
(a)
if
given
to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of
to the
Holders of the Capital Securities): Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Capital Markets, Telecopy: 302-636-4140, Telephone:
302-651-1000;
(b)
if
given
to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee): Washington Trust Bancorp, Inc.,
23
Broad Street, Westerly, Rhode Island 02891, Attention: David V. Devault,
Telecopy: (401) 348-1565, Telephone: (401) 348-1319; or
(c)
if
given
to any Holder of the Capital Securities, at the address set forth on the
books
and records of the Issuer.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or
other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
SECTION
8.4
Benefit
.
This
Guarantee is solely for the benefit of the Holders of the Capital Securities
and, subject to Section 2.1(a), is not separately transferable from the Capital
Securities.
SECTION
8.5
Governing
Law
.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES OF SAID
STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
SECTION
8.6
Counterparts
.
This
Guarantee may contain more than one counterpart of the signature page and
this
Guarantee may be executed by the affixing of the signature of the Guarantor
and
the Guarantee Trustee to any 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.
THIS
GUARANTEE is executed as of the day and year first above written.
WASHINGTON
TRUST BANCORP, INC.
,
as
Guarantor
By:
/s/
John C. Warren
Name:
John C. Warren
Title:
Chairman and CEO
WILMINGTON
TRUST COMPANY,
as
Guarantee Trustee
By:
/s/
Geoffrey J. Lewis
Name:
Geoffrey J. Lewis
Title:
Financial Services Officer
Exhibit 10.9
CAPITAL
SECURITY CERTIFICATE
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE
ON
WHICH THE TRUST OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES
ACT) OF THE TRUST WAS THE HOLDER OF THIS SECURITY OR SUCH INTEREST OR
PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF ANY,
AS
MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE
DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER,” AS DEFINED IN RULE 144A, 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) PURSUANT
TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO
AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT
OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE
TRUST PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR
(E)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED
AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR
PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE,
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR
THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT
THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.
Certificate
Number
P-1
Number
of
Capital Securities 10,000
Certificate
Evidencing Capital Securities
of
WT
CAPITAL TRUST II
Capital
Securities
(liquidation
amount $1,000 per Capital Security)
WT
Capital Trust II, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Greenwich Capital Financial
Products, Inc. is the registered owner (the “Holder”) of 10,000 capital
securities of the Trust representing undivided beneficial interests in the
assets of the Trust, designated as MMCapS
SM
(liquidation amount $1,000 per Capital Security) (the “Capital Securities”).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and
in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of
Trust
of the Trust, dated as of
August
29, 2005, among John C. Warren, John F. Treanor and David V. Devault, as
Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, Washington Trust Bancorp, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in the assets
of the
Trust, including the designation of the terms of the Capital Securities as
set
forth in Annex I to the Declaration, as the same may be amended from time
to
time (the “Declaration”). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to
the
benefits of the Guarantee and the Indenture to the extent provided therein.
The
Sponsor will provide a copy of the Declaration, the Guarantee, and the Indenture
to the Holder without charge upon written request to the Sponsor at its
principal place of business.
By
acceptance of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Certificate and the Capital Securities evidenced hereby are governed by,
and
shall be construed in accordance with, the laws of the State of Delaware,
without regard to principles of conflict of laws.
This
Certificate may contain more than one counterpart of the signature page and
this
Certificate may be executed and authenticated by the affixing of the signature
of an Administrator on behalf of the Trust, and the signature of the
Institutional Trustee providing authentication, to any 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 the Trust had
executed, and the Institutional Trustee had authenticated, a single signature
page.
IN
WITNESS WHEREOF, the Trust has duly executed this Certificate.
WT
CAPITAL TRUST II
By:
/s/
David V.
Devault
Name:
David V. Devault
Title:
Administrator
Dated:
August
29,
2005
CERTIFICATE
OF AUTHENTICATION
This
Certificate represents Capital Securities referred to in the within-mentioned
Declaration.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as the Institutional Trustee
By
:/s/
Geoffrey J.
Lewis
Authorized
Officer
Dated:
August
29,
2005
REVERSE
OF SECURITY
Distributions
on each Capital Security will be payable at a rate of interest per annum
rate
(the “Coupon Rate”) equal to (i) with respect to any Distribution Period prior
to the Distribution Period commencing on the Distribution Payment Date (as
defined herein) in November, 2010, 5.96% and (ii) with respect to
any
Distribution Period commencing on or after the Distribution Payment Date
in
November, 2010, LIBOR, as determined on the LIBOR Determination Date
for
such Distribution Period, plus 1.45%;
provided
,
however
,
that
the Coupon Rate for any Distribution Period commencing on or after the
Distribution Payment Date in November, 2010 may not exceed the Interest
Rate (as defined in the Indenture) for the related Interest Period (as defined
in the Indenture). Distributions in arrears for more than one Distribution
Period will bear interest thereon, compounded quarterly, at the applicable
Coupon Rate for each Distribution Period thereafter (to the extent permitted
by
applicable law). The term “Distributions”, as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures, unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has
funds
legally available in the Property Account therefor. The amount of Distributions
payable will be computed (i) with respect to any Distribution Period prior
to
the Distribution Period commencing on the Distribution Payment Date in
November, 2010, on the basis of a 360-day year consisting of twelve
30-day
months and (ii) with respect to any Distribution Period commencing on or
after
the Distribution Payment Date in November, 2010, on the basis of a
360-day
year and the actual number of days elapsed in such Distribution Period.
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on February 23, May 23, August 23 and November 23 of
each
year, commencing on November 23, 2005 (each, a “Distribution Payment Date”), and
on any earlier date of redemption, subject, in each case, to the Business
Day
convention specified in the Declaration. The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period for up to 20 consecutive quarterly periods (each
such extended interest payment period, together with all previous and future
consecutive extensions thereof, is referred to herein as an “Extension Period”)
at any time and from time to time on the Debentures, subject to the conditions
described below and in the Declaration and the Indenture. No Extension Period
may end on a date other than a Distribution Payment Date or extend beyond
the
Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as
the case may be. During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue, at
an annual rate equal to the Coupon Rate applicable during such Extension
Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by
applicable law. At the end of any Extension Period, the Debenture Issuer
shall
pay all Deferred Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that
prior to the termination of any Extension Period, the Debenture Issuer may
further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the
Debenture
Issuer may commence a new Extension Period, subject to the requirements
set
forth herein and in the Declaration and the Indenture.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at
the end
thereof, but Deferred Interest shall accrue upon each installment of interest
that would otherwise have been due and payable during such Extension Period
until such installment is paid.
As
a
consequence of any Extension Period, Distributions will be deferred.
If
Distributions are deferred, the Distributions due shall be paid on the date
that
the related Extension Period terminates to Holders of the Capital Securities
as
they appear on the books and records of the Trust on the regular record date
immediately preceding the Distribution Payment Date on which such Extension
Period terminates to the extent that the Trust has funds legally available
for
the payment of such Distributions in the Property Account of the Trust.
The
Capital Securities shall be redeemable, and shall be entitled to the Liquidation
Distribution, as provided in the Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced
by this Capital Security Certificate to:
____________________________
____________________________
____________________________
(Insert
assignee’s social security or tax identification number)
____________________________
____________________________
____________________________
(Insert
address and zip code of assignee),
and
irrevocably appoints
________________________________________________________
as
agent
to transfer the Capital Securities evidenced by this Capital Security
Certificate on the books of the Trust. The agent may substitute another to
act
for it, him or her.
Date:__________________
Signature:__________________
(Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
Signature
Guarantee:(1)
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union, meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
Exhibit 10.10
CAPITAL
SECURITY CERTIFICATE
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE
ON
WHICH THE TRUST OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES
ACT) OF THE TRUST WAS THE HOLDER OF THIS SECURITY OR SUCH INTEREST OR
PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF ANY,
AS
MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE
DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER,” AS DEFINED IN RULE 144A, 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) PURSUANT
TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO
AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)
OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH
AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT
OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE
TRUST PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR
(E)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED
AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR
PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY
BE,
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR
THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT
THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY
OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.
Certificate
Number
P-2
Number
of
Capital Securities 4,000
Certificate
Evidencing Capital Securities
of
WT
CAPITAL TRUST II
Capital
Securities
(liquidation
amount $1,000 per Capital Security)
WT
Capital Trust II, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Greenwich Capital Financial
Products, Inc. is the registered owner (the “Holder”) of 4,000 capital
securities of the Trust representing undivided beneficial interests in the
assets of the Trust, designated as MMCapS
SM
(liquidation amount $1,000 per Capital Security) (the “Capital Securities”).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and
in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of
Trust
of the Trust, dated as of
August
29, 2005, among John C. Warren, John F. Treanor and David V. Devault, as
Administrators,
Wilmington
Trust Company
,
as
Delaware Trustee,
Wilmington
Trust Company
,
as
Institutional Trustee, Washington Trust Bancorp, Inc., as Sponsor, and the
holders from time to time of undivided beneficial interests in the assets
of the
Trust, including the designation of the terms of the Capital Securities as
set
forth in Annex I to the Declaration, as the same may be amended from time
to
time (the “Declaration”). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to
the
benefits of the Guarantee and the Indenture to the extent provided therein.
The
Sponsor will provide a copy of the Declaration, the Guarantee, and the Indenture
to the Holder without charge upon written request to the Sponsor at its
principal place of business.
By
acceptance of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Certificate and the Capital Securities evidenced hereby are governed by,
and
shall be construed in accordance with, the laws of the State of Delaware,
without regard to principles of conflict of laws.
This
Certificate may contain more than one counterpart of the signature page and
this
Certificate may be executed and authenticated by the affixing of the signature
of an Administrator on behalf of the Trust, and the signature of the
Institutional Trustee providing authentication, to any 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 the Trust had
executed, and the Institutional Trustee had authenticated, a single signature
page.
IN
WITNESS WHEREOF, the Trust has duly executed this Certificate.
WT
CAPITAL TRUST II
By:
/s/
David V.
Devault
Name:
David V. Devault
Title:
Administrator
Dated:
August
29,
2005
CERTIFICATE
OF AUTHENTICATION
This
Certificate represents Capital Securities referred to in the within-mentioned
Declaration.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as the Institutional Trustee
By
:/s/
Geoffrey J.
Lewis
Authorized
Officer
Dated:
August 29,
2005
REVERSE
OF SECURITY
Distributions
on each Capital Security will be payable at a rate of interest per annum
rate
(the “Coupon Rate”) equal to (i) with respect to any Distribution Period prior
to the Distribution Period commencing on the Distribution Payment Date (as
defined herein) in November, 2010, 5.96% and (ii) with respect to
any
Distribution Period commencing on or after the Distribution Payment Date
in
November, 2010, LIBOR, as determined on the LIBOR Determination Date
for
such Distribution Period, plus 1.45%;
provided
,
however
,
that
the Coupon Rate for any Distribution Period commencing on or after the
Distribution Payment Date in November, 2010 may not exceed the Interest
Rate (as defined in the Indenture) for the related Interest Period (as defined
in the Indenture). Distributions in arrears for more than one Distribution
Period will bear interest thereon, compounded quarterly, at the applicable
Coupon Rate for each Distribution Period thereafter (to the extent permitted
by
applicable law). The term “Distributions”, as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures, unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has
funds
legally available in the Property Account therefor. The amount of Distributions
payable will be computed (i) with respect to any Distribution Period prior
to
the Distribution Period commencing on the Distribution Payment Date in
November, 2010, on the basis of a 360-day year consisting of twelve
30-day
months and (ii) with respect to any Distribution Period commencing on or
after
the Distribution Payment Date in November, 2010, on the basis of a
360-day
year and the actual number of days elapsed in such Distribution Period.
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on February 23, May 23, August 23 and November 23 of
each
year, commencing on November 23, 2005 (each, a “Distribution Payment Date”), and
on any earlier date of redemption, subject, in each case, to the Business
Day
convention specified in the Declaration. The Debenture Issuer has the right
under the Indenture to defer payments of interest on the Debentures by extending
the interest payment period for up to 20 consecutive quarterly periods (each
such extended interest payment period, together with all previous and future
consecutive extensions thereof, is referred to herein as an “Extension Period”)
at any time and from time to time on the Debentures, subject to the conditions
described below and in the Declaration and the Indenture. No Extension Period
may end on a date other than a Distribution Payment Date or extend beyond
the
Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as
the case may be. During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue, at
an annual rate equal to the Coupon Rate applicable during such Extension
Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by
applicable law. At the end of any Extension Period, the Debenture Issuer
shall
pay all Deferred Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that
prior to the termination of any Extension Period, the Debenture Issuer may
further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the
Debenture
Issuer may commence a new Extension Period, subject to the requirements
set
forth herein and in the Declaration and the Indenture.
No
interest or Deferred Interest (except any Additional Amounts that may be
due and
payable) shall be due and payable during an Extension Period, except at
the end
thereof, but Deferred Interest shall accrue upon each installment of interest
that would otherwise have been due and payable during such Extension Period
until such installment is paid.
As
a
consequence of any Extension Period, Distributions will be deferred.
If
Distributions are deferred, the Distributions due shall be paid on the date
that
the related Extension Period terminates to Holders of the Capital Securities
as
they appear on the books and records of the Trust on the regular record date
immediately preceding the Distribution Payment Date on which such Extension
Period terminates to the extent that the Trust has funds legally available
for
the payment of such Distributions in the Property Account of the Trust.
The
Capital Securities shall be redeemable, and shall be entitled to the Liquidation
Distribution, as provided in the Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced
by this Capital Security Certificate to:
____________________________
____________________________
____________________________
(Insert
assignee’s social security or tax identification number)
____________________________
____________________________
____________________________
(Insert
address and zip code of assignee),
and
irrevocably appoints
________________________________________________________
as
agent
to transfer the Capital Securities evidenced by this Capital Security
Certificate on the books of the Trust. The agent may substitute another to
act
for it, him or her.
Date:__________________
Signature:__________________
(Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
Signature
Guarantee:
(1)
____________________________
(1)
Signature must be guaranteed by an “eligible guarantor institution” that is a
bank, stockbroker, savings and loan association or credit union, meeting
the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
Exhibit 10.11
DEBT
SECURITY
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN
PRIOR
TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF
(Y) THE
DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE COMPANY
OR
ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE COMPANY
WAS THE HOLDER OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY
PREDECESSOR THERETO) AND (ii) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY ANY
SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE COMPANY, (B) PURSUANT
TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, AS DEFINED IN RULE
144A, 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) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR SUCH INTEREST OR PARTICIPATION
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO
OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT
TO REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO
THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE,
A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY
OR
ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF,
AS
THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT 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”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BY SECTION
406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN
WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR
THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF
THIS SECURITY IN DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE
SHALL
BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”). THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE
DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY,
IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
AND IS NOT SECURED.
Fixed/Floating
Rate Junior Subordinated Debt Security due 2035
of
WASHINGTON
TRUST BANCORP, INC.
Washington
Trust Bancorp, Inc., a bank holding company incorporated in the State of
Rhode
Island (the “Company”, which term includes any successor permitted under the
Indenture (as defined herein)), for value received, promises to pay to
Wilmington Trust Company, not in its individual capacity but solely as
Institutional Trustee for WT Capital Trust II, a Delaware statutory trust,
or
registered assigns, the principal amount of FOURTEEN MILLION FOUR HUNDRED
THIRTY-THREE THOUSAND Dollars ($14,433,000) on November 23, 2035 (the “Maturity
Date”) (or any Optional Redemption Date or the Special Redemption Date, each as
defined herein, or any earlier date of acceleration of the maturity of this
Debt
Security), and to pay interest on the outstanding principal amount of this
Debt
Security from August 29, 2005, or from the most recent Interest Payment Date
(as
defined below) to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on February 23, May
23,
August 23 and November 23 of each year, commencing on November 23, 2005 (each,
an “Interest Payment Date”), at a per annum rate (the “Interest Rate”) equal to
(i) with respect to any Interest Period (as defined in the Indenture) prior
to
the Interest Period commencing on the Interest Payment Date in
November, 2010, 5.96% and (ii) with respect to any Interest Period
commencing on or after the Interest Payment Date in November, 2010,
LIBOR
(as defined in the Indenture), as determined on the LIBOR Determination Date
(as
defined in the Indenture) for such Interest Period plus 1.45% (the “Interest
Rate”) (
provided
that the
Interest Rate for any Interest Period commencing on or after the Interest
Payment Date in November, 2010 may not exceed the highest rate permitted
by
New York law, as the same may be modified by United States law of general
application) until the principal hereof shall have been paid or duly provided
for, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at an annual rate equal to the then applicable
Interest Rate, compounded quarterly. The amount of interest payable shall
be
computed with respect to any Interest Period prior to the Interest Period
commencing on the Interest Payment Date in November, 2010, on the
basis of
a 360-day year consisting of twelve 30-day months and (ii) with respect to
any
Interest Period commencing on or after the Interest Payment Date in
November, 2010, on the basis of a 360-day year and the actual number
of
days elapsed in such Interest Period.
The
interest installment so payable, and punctually paid or duly provided for,
on
any Interest Payment Date will, as provided in the Indenture, be paid to
the
Person in whose name this Debt Security (or one or more Predecessor Securities,
as defined in the Indenture) is registered at the close of business on the
“regular record date” for such interest installment, which shall be the
fifteenth day prior to such Interest Payment Date, whether or not such day
is a
Business Day (as defined herein). Any such interest installment (other than
Deferred Interest (as defined herein)) not punctually paid or duly provided
for
shall forthwith cease to be payable to the holders on such regular record
date
and may be paid to the Person in whose name this Debt Security (or one or
more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof
shall
be
given to the holders of the Debt Securities not less than 10 days prior
to such
special record date, all as more fully provided in the
Indenture.
Payment
of the principal of and premium, if any, and interest on this Debt Security
due
on the Maturity Date, any Optional Redemption Date or the Special Redemption
Date, as the case may be, shall be made in immediately available funds against
presentation and surrender of this Debt Security at the office or agency
of the
Trustee maintained for that purpose in Wilmington, Delaware, or at the office
or
agency of any other Paying Agent appointed by the Company maintained for
that
purpose in Wilmington, Delaware or Providence, Rhode Island. Payment of interest
on this Debt Security due on any Interest Payment Date other than the Maturity
Date, any Optional Redemption Date or the Special Redemption Date, as the
case
may be, shall be made at the option of the Company by check mailed to the
holder
thereof at such address as shall appear in the Debt Security Register or
by wire
transfer of immediately available funds to an account appropriately designated
by the holder hereof. Notwithstanding the foregoing, so long as the holder
of
this Debt Security is the Institutional Trustee, payment of the principal
of and
premium, if any, and interest on this Debt Security shall be made in immediately
available funds when due at such place and to such account as may be designated
by the Institutional Trustee. All payments in respect of this Debt Security
shall be payable in any coin or currency of the United States of America
that at
the time of payment is legal tender for payment of public and private
debts.
Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date after
the Interest Payment Date in November, 2010, other than the Maturity
Date,
any Optional Redemption Date or the Special Redemption Date, falls on a day
that
is not a Business Day, then any interest payable will be paid on, and such
Interest Payment Date will be moved to, the next succeeding Business Day,
and
additional interest will accrue for each day that such payment is delayed
as a
result thereof. If any Interest Payment Date on or prior to the Interest
Payment
Date in November, 2010, the Maturity Date, any Optional Redemption
Date or
the Special Redemption Date falls on a day that is not a Business Day, then
the
principal, premium, if any, and/or interest payable on such date will be
paid on
the next succeeding Business Day, and no additional interest will accrue
in
respect of such payment made on such next succeeding Business Day.
So
long
as no Event of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or
(i)
of the Indenture has occurred and is continuing, the Company shall have the
right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the
term
of the Debt Securities, for up to 20 consecutive quarterly periods (each
such
extended interest payment period, together with all previous and further
consecutive extensions thereof, is referred to herein as an “Extension Period”).
No Extension Period may end on a date other than an Interest Payment Date
or
extend beyond the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be. During any Extension Period, interest
will
continue to accrue on the Debt Securities, and interest on such accrued interest
(such accrued interest and interest thereon referred to herein as “Deferred
Interest”) will accrue at an annual rate equal to the Interest Rate applicable
during such Extension Period, compounded quarterly from the date such Deferred
Interest would have been payable were it not for the Extension Period, to
the
extent permitted by applicable law. No
interest
or Deferred Interest (except any Additional Amounts (as defined in the
Indenture) that may be due and payable) shall be due and payable during
an
Extension Period, except at the end thereof. At the end of any Extension
Period,
the Company shall pay all Deferred Interest then accrued and unpaid on
the Debt
Securities;
provided
,
however
,
that
during any Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock, (ii)
make any payment of principal of or premium, if any, or interest on or
repay,
repurchase or redeem any debt securities of the Company that rank
pari
passu
in all
respects with or junior in interest to the Debt Securities or (iii) make
any
payment under any guarantees of the Company that rank in all respects
pari
passu
with or
junior in respect to the Capital Securities Guarantee (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock
of the
Company (A) in connection with any employment contract, benefit plan or
other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment
or
stockholder stock purchase plan or (C) in connection with the issuance
of
capital stock of the Company (or securities convertible into or exercisable
for
such capital stock), as consideration in an acquisition transaction entered
into
prior to such Extension Period, (b) as a result of any exchange or conversion
of
any class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase of fractional interests
in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any stockholder’s rights
plan, or the issuance of rights, stock or other property under any stockholder’s
rights plan, or the redemption or repurchase of rights pursuant thereto
or (e)
any dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks
pari
passu
with or
junior to such stock). Prior to the termination of any Extension Period,
the
Company may further extend such Extension Period,
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment
of
all Deferred Interest, the Company may commence a new Extension Period,
subject
to the foregoing requirements. The Company must give the Trustee notice
of its
election to begin or extend an Extension Period no later than the close
of
business on the fifteenth Business Day prior to the applicable Interest
Payment
Date.
The
indebtedness evidenced by this Debt Security is, to the extent provided in
the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness (as defined in the Indenture), and this Debt
Security is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debt Security, by accepting the same, (a) agrees
to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on
such holder’s behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the
Trustee such holder’s attorney-in-fact for any and all such purposes. Each
holder hereof, by such holder’s acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding
or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
The
Company waives diligence, presentment, demand for payment, notice of nonpayment,
notice of protest, and all other demands and notices.
This
Debt
Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on
behalf
of the Trustee.
The
provisions of this Debt Security are continued on the reverse side hereof
and
such continued provisions shall for all purposes have the same effect as
though
fully set forth at this place.
This
Debt
Security may contain more than one counterpart of the signature page and
this
Debt Security may be executed and authenticated by the affixing of the signature
of a proper officer of the Company, and the signature of the Trustee providing
authentication, to any 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 the Company had executed, and the Trustee
had
authenticated, a single signature page.
IN
WITNESS WHEREOF, the Company has duly executed this certificate.
WASHINGTON
TRUST BANCORP, INC.
By:
/s/
John C.
Warren
Name:
John C. Warren
Title:
Chairman and CEO
Dated:
August
29, 2005
CERTIFICATE
OF AUTHENTICATION
This
certificate represents Debt Securities referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
the
Trustee
By:
/s/
Geoffrey J.
Lewis
Authorized
Officer
Dated:
August
29, 2005
REVERSE
OF SECURITY
This
Debt
Security is one of a duly authorized series of debt securities of the Company
(collectively, the “Debt Securities”), all issued or to be issued pursuant to an
Indenture (the “Indenture”), dated as of August 29, 2005, duly executed and
delivered between the Company and Wilmington Trust Company, as Trustee (the
“Trustee”), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company
and
the holders of the Debt Securities of which this Debt Security is a
part.
Upon
the
occurrence and continuation of a Tax Event, an Investment Company Event or
a
Capital Treatment Event (each, a “Special Event”), the Company shall have the
right to redeem this Debt Security, at its option, in whole with all other
Debt
Securities but not in part, at any time, within 90 days following the occurrence
of such Special Event (the “Special Redemption Date”), at the Special Redemption
Price (as defined herein).
The
Company shall also have the right to redeem this Debt Security at its option,
in
whole or (provided that all accrued and unpaid interest has been paid on
all
Debt Securities for all Interest Periods terminating on or prior to such
date)
from time to time in part, on any Interest Payment Date on or after November
23,
2010 (each, an “Optional Redemption Date”), at the Optional Redemption Price (as
defined herein).
Any
redemption pursuant to the preceding two paragraphs will be made, subject
to
receipt by the Company of prior approval from the Board of Governors of the
Federal Reserve System (the “Federal Reserve”) if then required under applicable
capital guidelines or policies of the Federal Reserve, upon not less than
30
days’ nor more than 60 days’ prior written notice. If the Debt Securities are
only partially redeemed by the Company, the Debt Securities will be redeemed
pro
rata or by any other method utilized by the Trustee. In the event of redemption
of this Debt Security in part only, a new Debt Security or Debt Securities
for
the unredeemed portion hereof will be issued in the name of the holder hereof
upon the cancellation hereof.
“Optional
Redemption Price” means an amount in cash equal to 100% of the principal amount
of this Debt Security being redeemed plus unpaid interest accrued thereon
to the
related Optional Redemption Date.
“Special
Redemption Price” means, with respect to the redemption of this Debt Security
following a Special Event, an amount in cash equal to 104.00% of the principal
amount of this Debt Security to be redeemed prior to November 23, 2006 and
thereafter equal to the percentage of the principal amount of this Debt Security
that is specified below for the Special Redemption Date plus, in each case,
unpaid interest accrued thereon to the Special Redemption Date:
|
Special
Redemption During the 12-Month
Period
Beginning November 23,
|
Percentage
of Principal Amount
|
|
2006
|
103.20%
|
|
2007
|
102.40%
|
|
2008
|
101.60%
|
|
2009
|
100.80%
|
|
2010
and thereafter
|
100.00%
|
In
case
an Event of Default, as defined in the Indenture, shall have occurred and
be
continuing, the principal of all of the Debt Securities may be declared,
and, in
certain cases, shall
ipso
facto
become,
due and payable, and upon any such declaration of acceleration shall become
due
and payable, in each case, in the manner, with the effect and subject to
the
conditions provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of a majority in aggregate principal amount of the
Debt
Securities at the time outstanding affected thereby, as specified in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
the Indenture or of any supplemental indenture or of modifying in any manner
the
rights of the holders of the Debt Securities;
provided
,
however
,
that no
such supplemental indenture shall, among other things, without the consent
of
the holders of each Debt Security then outstanding and affected thereby
(i) change the Maturity Date of any Debt Security, or reduce the principal
amount thereof or any premium thereon, or reduce the rate (or manner of
calculation of the rate) or extend the time of payment of interest thereon,
or
reduce (other than as a result of the maturity or earlier redemption of any
such
Debt Security in accordance with the terms of the Indenture and such Debt
Security) or increase the aggregate principal amount of Debt Securities then
outstanding, or change any of the redemption provisions, or make the principal
thereof or any interest or premium thereon payable in any coin or currency
other
than United States Dollars, or impair or affect the right of any holder to
institute suit for payment thereof, or (ii) reduce the aforesaid percentage
of Debt Securities the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting
the
holders of a majority in aggregate principal amount of the Debt Securities
at
the time outstanding, on behalf of the holders of all the Debt Securities,
to
waive any past default in the performance of any of the covenants contained
in
the Indenture, or established pursuant to the Indenture, and its consequences,
except (a) a default in payments due in respect of any of the Debt
Securities, (b) in respect of covenants or provisions of the Indenture
which cannot be modified or amended without the consent of the holder of
each
Debt Security affected, or (c) in respect of the covenants of the
Company
relating to its ownership of Common Securities of the Trust. Any such consent
or
waiver by the holder of this Debt Security (unless revoked as provided in
the
Indenture) shall be conclusive and binding upon such holder and upon
all
future holders and owners of this Debt Security and of any Debt Security
issued
in exchange herefor or in place hereof (whether by registration of transfer
or
otherwise), irrespective of whether or not any notation of such consent
or
waiver is made upon this Debt Security.
No
reference herein to the Indenture and no provision of this Debt Security
or of
the Indenture shall alter or impair the obligation of the Company, which
is
absolute and unconditional, to make all payments due on this Debt Security
at
the time and place and at the rate and in the money herein
prescribed.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, this Debt Security is transferable by the holder hereof on the
Debt
Security Register (as defined in the Indenture) of the Company, upon surrender
of this Debt Security for registration of transfer at the office or agency
of
the Trustee in Wilmington, Delaware, or at any other office or agency of
the
Company in Wilmington, Delaware or Providence, Rhode Island, accompanied
by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the holder hereof or such holder’s
attorney duly authorized in writing, and thereupon one or more new Debt
Securities of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such registration of transfer, but the Company
or
the Trustee may require payment of a sum sufficient to cover any tax, fee
or
other governmental charge payable in relation thereto as specified in the
Indenture.
Prior
to
due presentment for registration of transfer of this Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent
and
the Debt Security registrar may deem and treat the holder hereof as the absolute
owner hereof (whether or not this Debt Security shall be overdue and
notwithstanding any notice of ownership or writing hereon) for the purpose
of
receiving payment of the principal of and premium, if any, and interest on
this
Debt Security and for all other purposes, and none of the Company, the Trustee,
any Authenticating Agent, any Paying Agent, any transfer agent or any Debt
Security registrar shall be affected by any notice to the contrary.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, Debt Securities are exchangeable for a like aggregate principal
amount of Debt Securities of different authorized denominations, as requested
by
the holder surrendering the same.
The
Debt
Securities are issuable only in registered certificated form without coupons.
No
recourse shall be had for the payment of the principal of or premium, if
any, or
interest on this Debt Security, or for any claim based hereon, or otherwise
in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer, director, employee or agent, past, present
or future, as such, of the Company or of any predecessor or successor
corporation of the Company, whether by virtue of any constitution, statute
or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and
released.
All
terms
used but not defined in this Debt Security shall have the meanings assigned
to
them in the Indenture.
THIS
DEBT
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID
STATE
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.