UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of report (Date of earliest event reported):
December
15, 2006
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Horizon
Bancorp
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(Exact
Name of Registrant as Specified in Its Charter)
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Indiana
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000-10792
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35-1562417
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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515
Franklin Square, Michigan City, Indiana
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46360
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(219)
879-0211
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(Registrant’s
Telephone Number, Including Area Code)
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(Former
Name or Former Address, if Changed Since Last
Report)
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Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2. below):
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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Item
2.03. Creation of a Direct Financial Obligation or an Obligation
Under an Off-Balance Sheet Arrangement of a Registrant
Introduction
On
December 15, 2006, Horizon Bancorp (“Horizon”) entered into several agreements
providing for the private placement of $12,000,000 in Floating Rate Preferred
Securities (the “Preferred Securities”). The Preferred Securities were issued by
Horizon’s newly formed Delaware trust subsidiary, Horizon Bancorp Capital Trust
III (the “Trust”), to TWE, Ltd. (the “Purchaser”). The proceeds of the Preferred
Securities sale were used by the Trust to purchase Floating Rate Junior
Subordinated Notes (the “Notes”) from Horizon pursuant to a Junior Subordinated
Indenture (the “Indenture”) between Horizon and Wilmington Trust Company as
trustee (the “Trustee”).
The
Preferred Securities will mature in 30 years and bear a variable rate of
interest at the initial rate of 7.01% per annum. The rate will adjust quarterly
to three-month LIBOR plus 1.65%. Interest on the Preferred Securities is
payable
quarterly in arrears each January 30, April 30, July 30 and October 30. Horizon
may redeem the trust preferred securities, in whole or in part, on or after
January 30, 2012, or earlier upon the occurrence of certain events.
Horizon
expects to use the net proceeds from the offering to redeem $12,000,000 in
currently outstanding trust preferred securities in March of 2007. Generally,
the proceeds of a trust preferred offering qualify as Tier 1 capital
for bank regulatory purposes, up to 25% of total Tier 1 capital. Any amounts
that do not qualify as Tier 1 capital qualify as Tier 2 capital. Because
Horizon already has outstanding trust preferred securities in excess of 25%
of
total Tier 1 capital, the proceeds of this offering will not qualify for
Tier 1
capital until the other trust preferred securities mentioned above are redeemed,
and even then, it is likely that all of the proceeds from this offering will
not
qualify as Tier 1 capital.
The
principal agreements Horizon entered into in connection with this transaction
are briefly described below and are attached as exhibits to this Current
Report
on Form 8-K.
Placement
Agreement
Horizon
and the Trust entered into a Placement Agreement (the “Placement Agreement”)
with J.P. Morgan Securities Inc. (“J.P. Morgan”), which provided J.P. Morgan
with the exclusive right to sell the Preferred Securities to the Purchaser
for
$12,000,000. No commission or placement fee was paid by Horizon or the Trust
to
J.P. Morgan for its services under the Placement Agreement.
The
Placement Agreement contains certain customary representations and warranties
of
Horizon and the Trust which survive the initial sale of the Preferred
Securities. The Placement Agreement also provides for indemnification of
J.P.
Morgan, the Purchaser and each of their affiliates against specified losses,
claims, damages and liabilities related to the transaction.
Amended
and Restated
Trust
Agreement
The
Amended and Restated Trust Agreement (the “Trust Agreement”) describes the
rights and obligations of Horizon, as the holder of all of the common securities
of the Trust (the “Common Securities”), and the rights and obligations of the
holders of the Preferred Securities. The Trust Agreement provides for
distributions to be paid on the Preferred Securities and the Common Securities,
based on the liquidation amount of the outstanding Preferred and Common
Securities, at the same rates and times as interest is payable on the Notes.
As
a result, distributions will only be paid with respect to the Preferred
Securities if Horizon makes the corresponding interest payment with respect
to
the Notes. Maturity, redemption, and acceleration features for the Preferred
Securities are the same as those of the Notes.
Under
the
Indenture (described below), Horizon has the option, as long as it is not
in
default under the Indenture, at any time, to defer the payment of interest
on
the Notes for up to twenty consecutive quarterly interest payment periods.
If
payments are deferred on the Notes, the distributions required to be made
with
respect to the Preferred Securities will also be deferred. During any such
deferral period, or while an event of default exists under the Indenture,
Horizon will be subject to various restrictions which are described below
with
respect to the Indenture.
Payment
of distributions with respect to the Common Securities is subordinated to
the
payment of such amounts on the Preferred Securities.
Indenture
The
Indenture describes the rights and obligations of the Trust and the Trustee,
as
the holder of all of the Notes, and certain rights and obligations of the
holders of the Preferred Securities. The Notes bear interest at the same
rate as
the Preferred Securities, and interest is payable on the same dates as interest
is payable with respect to the Preferred Securities.
Under
the
Indenture, Horizon has the option, as long as it is not in default under
the
Indenture, at any time and from time to time, to defer the payment of interest
on the Notes for up to twenty consecutive quarterly interest payment periods.
During any such deferral period, or while an event of default exists under
the
Indenture, Horizon may not declare or pay dividends or distributions on,
redeem,
or make a liquidation payment with respect to, any of its capital stock,
or make
payments of principal, interest or premium on, or repay or repurchase, any
other
debt securities that rank equal or junior to the Notes.
The
Notes
mature 30 years after their date of issuance, and can be redeemed in whole
or in
part by Horizon, at any time after January 30, 2012. Horizon may also redeem
the
Notes upon the occurrence of a “capital disqualification event,” an “investment
company event” or a “tax event” as defined in the Indenture. The payment of
principal and interest on the Notes is subordinate and subject to the right
of
payment of all “Senior Debt” of Horizon as described in the
Indenture.
Guarantee
Agreement
Horizon,
as Guarantor, entered into a Guarantee Agreement with Wilmington Trust Company,
as Guarantor Trustee, for the benefit of the holders of the Preferred
Securities. Pursuant to the Guarantee Agreement, Horizon unconditionally
agreed
to pay to the holders of the Preferred Securities all amounts becoming due
and
payable with respect to the Preferred Securities, to the extent that the
Trust
has funds available for such payment at the time. Horizon’s guarantee obligation
under the Guarantee Agreement is a general unsecured obligation of Horizon
and
is subordinate and junior in right of payment to all of Horizon’s Senior
Debt.
The
Guarantee Agreement also requires Horizon to indemnify and hold harmless
the
Guarantee Trustee from losses, damages, and other liabilities in connection
with
its service as Guarantee Trustee. In the event Horizon elects to defer payments
with respect to the Notes, or while an event of default exists under the
Guarantee Agreement, Horizon will be subject to the same restrictions which
arise in similar situations under the Trust Agreement.
Item
9.01 Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
No.
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Description
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1.1
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Placement
Agreement, dated December 15, 2006, among Horizon Bancorp, Horizon
Bancorp
Capital Trust III and J.P. Morgan Securities Inc.
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4.1
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Junior
Subordinated Indenture, dated as of December 15, 2006, between
Horizon
Bancorp and Wilmington Trust Company.
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4.2
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Amended
and Restated Trust Agreement of Horizon Bancorp Capital Trust III,
dated
as of December 15, 2006.
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10.1
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Guarantee
Agreement of Horizon Bancorp, dated as of December 15, 2006.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
Date: December
19, 2006
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Horizon
Bancorp
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By:
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/s/
James H. Foglesong
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James
H. Foglesong,
Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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Location
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1.1
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Placement
Agreement, dated December 15, 2006, among Horizon Bancorp, Horizon
Bancorp
Capital Trust III and J.P. Morgan Securities Inc.
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Attached
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4.1
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Junior
Subordinated Indenture, dated as of December 15, 2006, between
Horizon
Bancorp and Wilmington Trust Company.
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Attached
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4.2
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Amended
and Restated Trust Agreement of Horizon Bancorp Capital Trust III,
dated
as of December 15, 2006.
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Attached
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10.1
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Guarantee
Agreement of Horizon Bancorp, dated as of December 15, 2006.
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Attached
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Exhibit
1.1
PLACEMENT
AGREEMENT
AMONG
HORIZON
BANCORP,
HORIZON
BANCORP CAPITAL TRUST III
AND
J.P.
MORGAN SECURITIES INC.
________________
Dated
as
of December 15, 2006
________________
Horizon
Bancorp
$12,000,000
Preferred Securities
Floating
Rate Preferred Securities
(Liquidation
Amount $1,000 per Preferred Security)
PLACEMENT
AGREEMENT
______________________
December
15, 2006
J.P.
Morgan Securities Inc.
270
Park
Avenue
New
York,
New York 10017
Ladies
and Gentlemen:
Horizon
Bancorp, an Indiana corporation (the “Company”), and its financing subsidiary,
Horizon Bancorp Capital Trust III, a Delaware statutory trust (the “Trust,” and
hereinafter together with the Company, the “Offerors”), hereby confirm their
agreement (this “Agreement”) with you (the “Placement Agent”), as
follows:
Section
1.
Issuance
and Sale of Securities
.
1.1
Introduction
.
The
Offerors propose to issue and sell at the Closing (as defined in
Section
2.3.1
hereof)
an aggregate of
TWELVE
MILLION AND 00/100 ($12,000,000)
DOLLARS
of the
Trust’s Floating Rate Preferred Securities, with a liquidation amount of $1,000
per preferred security, bearing a variable rate of interest per annum, reset
quarterly, equal to LIBOR (as defined in the Indenture (as defined below))
plus
1.65% (the “Preferred Securities”), directly or indirectly, to TWE, Ltd., an
exempted company incorporated under the laws of the Cayman Islands (the
“Purchaser”), pursuant to the terms of the Preferred Securities Subscription
Agreement entered into, or to be entered into on or prior to the Closing Date
(as defined in
Section
2.3.1
hereof),
between the Offerors and the Purchaser (the “Subscription Agreement”), the form
of which is attached hereto as
Exhibit
A
a
nd
incorporated herein by this reference.
1.2
Operative
Agreements
.
The
Preferred Securities shall be fully and unconditionally guaranteed on a
subordinated basis by the Company with respect to distributions and amounts
payable upon liquidation, redemption or repayment (the “Guarantee”) pursuant and
subject to the Guarantee Agreement (the “Guarantee Agreement”), to be dated as
of the Closing Date and executed and delivered by the Company and Wilmington
Trust Company, as guarantee trustee (the “Guarantee Trustee”), for the benefit
from time to time of the holders of the Preferred Securities. The entire
proceeds from the sale by the Trust to the holders of the Preferred Securities
shall be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the “Common Securities”), and shall be used by
the Trust to
purchase
TWELVE
MILLION THREE HUNDRED SEVENTY-TWO THOUSAND
AND
00/100 ($12,372,000)
DOLLARS
in
principal amount of the Floating Rate Junior Subordinated Notes (the “Junior
Subordinated Notes”) of the Company. The Preferred Securities and the Common
Securities of the Trust shall be issued pursuant to an Amended and Restated
Trust Agreement among Wilmington Trust Company, as property trustee (the
“Property Trustee”), and as Delaware trustee (the “Delaware Trustee”) the
Administrative Trustees named therein and the Company, to be dated as of the
Closing Date and in substantially the form heretofore delivered to the Placement
Agent (the “Trust Agreement”). The Junior Subordinated Notes shall be issued
pursuant to an Indenture (the “Indenture”), to be dated as of the Closing Date,
between the Company and Wilmington Trust Company, as indenture trustee (the
“Indenture Trustee”). The documents identified in this
Section
1.2
and in
Section
1.1
are
referred to herein as the “Operative Documents.” The Preferred Securities, the
Common Securities and the Junior Subordinated Notes are collectively referred
to
as the “Securities.” All other capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the
Indenture.
1.3
Rights
of Purchaser
.
The
Preferred Securities shall be offered and sold by the Trust, directly or
indirectly, to the Purchaser without registration of any of the Preferred
Securities, the Junior Subordinated Notes or the Guarantee under the Securities
Act of 1933, as amended (the “Securities Act”), or any other applicable
securities laws in reliance upon exemptions from the registration requirements
of the Securities Act and other applicable securities laws. The Offerors agree
that this Agreement shall be incorporated by reference into the Subscription
Agreement and the Purchaser shall be entitled to each of the benefits of the
Placement Agent and the Purchaser under this Agreement (except for the rights
of
the Placement Agent under
Sections
2.1
and
2.4.1
of this
Agreement) and shall be entitled to enforce obligations of the Offerors under
this Agreement as fully as if the Purchaser were a party to this Agreement.
The
Offerors and the Placement Agent have entered into this Agreement to set forth
their understanding as to their relationship and their respective rights, duties
and obligations.
1.4
Legends
.
Upon
original issuance thereof, the Preferred Securities and Junior Subordinated
Notes certificates shall each contain a legend as required pursuant to any
of
the Operative Documents, including without limitation, a legend stating that
the
offer, sale or transfer of the Preferred Securities or the Junior Subordinated
Notes, as the case may be, will be made only (a) to the issuer thereof, (b)
to a
person that the transferor reasonably believe is a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act) in a transaction
meeting the requirements of Rule 144A, or (c) to an institutional “accredited
investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
501 under the Securities Act that is acquiring the Preferred Securities or
the
Junior Subordinated Notes, as the case may be, 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, in each case in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction and, in the case of (c) above, subject to the right of the Trust
and/or the Company, as applicable, to require an opinion of counsel and other
information satisfactory to each of them.
Section
2.
Purchase
of
Preferred
Securities
.
2.1
Exclusive
Rights; Purchase Price
.
From the
date hereof until the Closing Date (which date may be extended by mutual
agreement of the Offerors and the Placement Agent), the Offerors hereby grant
to
the Placement Agent the exclusive right to arrange for the sale to the Purchaser
of the Preferred Securities at a purchase price equal to $1,000 per Preferred
Security. The aggregate purchase price shall be
TWELVE
MILLION AND 00/100 ($12,000,000)
DOLLARS
(the
“Purchase Price”), which Purchase Price is equal to 100% of the stated
liquidation amount of the Preferred Securities.
2.2
Subscription
.
The
Offerors hereby agree to evidence their acceptance of the subscription by
countersigning a copy of the Subscription Agreement and returning the same
to
the Placement Agent.
2.3
Closing
and Delivery of Payment
.
2.3.1
Closing;
Closing Date
.
The
closing (the “Closing”) for the sale and purchase of the Preferred Securities by
the Offerors to the Purchaser shall occur at the offices of Thacher Proffitt
& Wood
llp
,
Two
World Financial Center, New York, New York 10281, or such other place as the
parties hereto shall agree at 11:00 a.m. (New York time) on December 15, 2006,
or such other later date (not later than January 15, 2007) as the parties may
designate (such date and time of delivery and payment for the Preferred
Securities being herein called the “Closing Date”). The Preferred Securities
shall be transferred and delivered to the Purchaser, or its designee against
the
payment of the Purchase Price to the Offerors in immediately available funds
on
the Closing Date to a U.S. account designated in writing by the Company at
least
two (2) business days prior to the Closing Date.
2.3.2
Delivery
.
Delivery
of the Preferred Securities shall be made at such location, and in such names
and denominations, as the Purchaser shall designate in advance of the Closing
Date. The Company and the Trust agree to have the Preferred Securities available
for inspection and checking by the Purchaser in New York, New York not later
than 1:00 P.M., New York time, on the business day prior to the Closing Date.
2.4
Placement
Agents’ Fees and Expenses
.
2.4.1
Placement
Agents’ Compensation
.
The
Trust shall use the proceeds from the sale of the Preferred Securities, together
with the proceeds from the sale of the Common Securities, to purchase the Junior
Subordinated Notes. In connection with the purchase of the Preferred Securities,
the Company shall pay no fees or commissions to the Placement Agent. The
Placement Agent shall be responsible for the following expenses: (i) any rating
agency costs and expenses and (ii) any fee payable to the Company’s introducing
agent (the “Introducing Agent”) for services rendered, provided, that the
Introducing Agent has an agreement with the Placement Agent (the “Fee”), but
shall not be responsible for any fees and expenses set forth in
Section
2.4.2
hereof.
2.4.2
Costs
and Expenses
.
The
Company hereby covenants and agrees that it shall pay or cause to be paid
(directly or by reimbursement) all costs and expenses incident to
the
performance
of the obligations of the Offerors under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is
terminated, including (i) all costs and expenses incident to the authorization,
issuance, sale and delivery of the Preferred Securities and any taxes payable
in
connection therewith; (ii) the fees and expenses of qualifying the Preferred
Securities under the securities laws of the several jurisdictions as provided
in
Section
6.4
;
(iii)
the fees and expenses of the counsel, the accountants and any other experts
or
advisors retained by the Company or the Trust, which counsel fees and expenses
incurred in connection with the closing of the transactions contemplated hereby,
in an amount up to $10,000, shall be reimbursed by the Purchaser on the Closing
Date; and (iv) the fees and all reasonable expenses of the Guarantee Trustee,
the Property Trustee, the Delaware Trustee, the Indenture Trustee and any other
trustee or paying agent appointed under the Operative Documents except for
any
acceptance fee and annual administrative fees of any such trustee and the fees
and disbursements of counsel to such trustees incurred in connection with the
closing of the transactions contemplated hereby, which shall be paid by the
Purchaser.
2.4.3
Reimbursement
of Expenses
.
If the
sale of the Preferred Securities provided for in this Agreement is not
consummated because any condition set forth in
Section
3
to be
satisfied by either the Company or the Trust is not satisfied, because this
Agreement is terminated pursuant to
Section
10
or
because of any failure, refusal or inability on the part of the Company or
the
Trust to perform all obligations and satisfy all conditions on its part to
be
performed or satisfied hereunder other than by a reason of a default by the
Placement Agent, the Company will reimburse the Placement Agent upon demand
for
all reasonable out-of-pocket expenses (including the fees and expenses of each
of the Placement Agent’s or Purchaser’s counsel) that shall have been incurred
by the Placement Agent or the Purchaser in connection with the proposed purchase
and sale of the Preferred Securities. The Company shall not in any event be
liable to the Placement Agent or the Purchaser for the loss of anticipated
profits from the transactions contemplated by this Agreement.
2.5
Failure
to Close
.
If any
of the conditions to the Closing specified in this Agreement shall not have
been
fulfilled to the satisfaction of the Placement Agent or if the Closing shall
not
have occurred on or before 11:00 a.m. (New York time) on January 15, 2007,
then
each party hereto, notwithstanding anything to the contrary in this Agreement,
shall be relieved of all further obligations under this Agreement without
thereby waiving any rights it may have by reason of such nonfulfillment or
failure;
provided
,
however
,
that
the obligations of the parties under
Sections
2.4
and
8
shall
not be so relieved and shall continue in full force and effect.
Section
3.
Closing
Conditions
.
The
obligations of the parties under this Agreement on the Closing Date are subject
to the following conditions:
3.1
Accuracy
of Representations and Warranties
.
The
representations and warranties contained in this Agreement, and the statements
of the Offerors made in any certificates pursuant to this Agreement, shall
be
accurate as of the date of delivery of the Preferred Securities.
3.2
Opinions
of Counsel
.
On the
Closing Date, the Placement Agent shall have received the following favorable
opinions or certificate, as the case may be, each dated as of the
Closing
Date: (a) from Thacher Proffitt & Wood
llp
,
special
counsel for the Placement Agent and the Purchaser and addressed to the Placement
Agent and Purchaser in substantially the form set forth on
Exhibit
B-1
attached
hereto and incorporated herein by this reference, (b) either (i) an opinion
from
Barnes & Thornburg LLP, counsel for the Offerors, or (ii) an opinion from
the General Counsel or Chief Legal Officer of the Company, or (iii) if the
Company does not have a General Counsel or Chief Legal Officer, an Officers’
Certificate from the Chief Executive Officer, President or Executive Vice
President of the Company, and the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, in each case addressed to the Purchaser
and
the Placement Agent in substantially the form set forth on
Exhibit
B-2
attached
hereto and incorporated herein by this reference, (c) from Barnes &
Thornburg LLP, tax counsel for the Offerors and addressed to the Placement
Agent
and the Purchaser in substantially the form set forth on
Exhibit
B-3
attached
hereto and incorporated herein by this reference, (d) from Morris James LLP,
special Delaware counsel to the Trust and addressed to the Purchaser, the
Placement Agent and the Offerors, in substantially the form set forth on
Exhibit
B-4
attached
hereto and incorporated herein by this reference, and (e) from Morris James
LLP,
special counsel to the Indenture Trustee, the Property Trustee, the Delaware
Trustee and the Guarantee Trustee and addressed to the Purchaser, the Placement
Agent and the Offerors, in substantially the form set forth on
Exhibit
B-5
attached
hereto and incorporated herein by this reference. Each certificate or opinion
addressed to the Purchaser shall state that the first entity, if any, to which
the Purchaser transfers any of the Preferred Securities and, if such transferee
is a warehouse entity, the next subsequent transferee that is not a warehouse
entity (each, a “Subsequent Purchaser”), shall be entitled to rely on such
opinion.
3.3
Officer’s
Certificate
.
The
Company shall have furnished to the Placement Agent and the Purchaser a
certificate of the Company, signed by the Chief Executive Officer, President
or
an Executive Vice President and by the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, and the Trust shall have furnished to the
Placement Agent and the Purchaser a certificate of the Trust, signed by an
Administrative Trustee of the Trust, in each case dated the Closing Date, and,
in the case of the Company, as to
3.3.1
and
3.3.2
below
and, in the case of the Trust, as to
3.3.1
below:
3.3.1
the
representations and warranties in this Agreement are true and correct on and
as
of the Closing Date with the same effect as if made on the Closing Date, and
the
Company and the Trust have complied with all the agreements and satisfied all
the conditions on either of their part to be performed or satisfied at or prior
to the Closing Date; and
3.3.2
since
the
date of the Interim Financial Statements (as defined below), there has been
no
material adverse change in the condition (financial or other), earnings,
business, prospects or assets of the Company and its subsidiaries, taken as
a
whole, whether or not arising from transactions occurring in the ordinary course
of business.
3.4
No
Subsequent Change
.
Subsequent to the execution of this Agreement, there shall not have been any
change, or any development involving a prospective change, in or affecting
the
condition (financial or other), earnings, business, prospects or assets of
the
Company and its subsidiaries, whether or not occurring in the ordinary course
of
business, the
effect
of
which is, in the Placement Agent’s or the Purchaser’s judgment, so material and
adverse as to make it impractical or inadvisable to proceed with the purchase
of
the Preferred Securities.
3.5
Purchase
Permitted by Applicable Laws; Legal Investment
.
The
purchase of and payment for the Preferred Securities as described in this
Agreement and pursuant to the Subscription Agreement shall (a) not be prohibited
by any applicable law or governmental regulation, (b) not subject the Purchaser
or the Placement Agent to any penalty or, in the reasonable judgment of the
Purchaser and the Placement Agent, other onerous conditions under or pursuant
to
any applicable law or governmental regulation, and (c) be permitted by the
laws
and regulations of the jurisdictions to which the Purchaser and the Placement
Agent are subject.
3.6
Consents
and Permits
.
The
Company and the Trust shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may be required
from any person or entity pursuant to any law, statute, regulation or rule
(federal, state, local and foreign), or pursuant to any agreement, order or
decree to which the Company or the Trust is a party or to which either is
subject, in connection with the transactions contemplated by this Agreement.
3.7
Information
.
Prior to
or on the Closing Date, the Offerors shall have furnished to the Placement
Agent, the Purchaser and their respective counsel such further information,
certificates, opinions and documents as the Placement Agent, the Purchaser
or
their respective counsel may reasonably request.
If
any of
the conditions specified in this
Section
3
shall
not have been fulfilled when and as required in this Agreement, or if any of
the
opinions, certificates and documents mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Placement Agent, the Purchaser or their respective counsel, this Agreement
and
all the Placement Agent’s obligations hereunder may be canceled at, or any time
prior to, the Closing Date by the Placement Agent. Notice of such cancellation
shall be given to the Offerors in writing or by telephone or facsimile confirmed
in writing.
Each
certificate signed by any trustee of the Trust or any officer of the Company
and
delivered to the Placement Agent, the Purchaser or their respective counsel
in
connection with the Operative Documents and the transactions contemplated hereby
and thereby shall be deemed to be a representation and warranty of the Trust
and/or the Company, as the case may be, and not by such trustee or officer
in
any individual capacity.
Section
4.
Representations
and Warranties of the Offerors
.
The
Offerors jointly and severally represent and warrant to the Placement Agent
and
the Purchaser as of the date hereof and as of the Closing Date as
follows:
4.1
Securities
Laws Matters:
(i)
Neither
the Company nor the Trust, nor any of their “Affiliates” (as defined in Rule
501(b) of Regulation D under the Securities Act (“Regulation D”)), nor any
person acting on any of their behalf (except for the Placement Agent, as to
which neither the Company nor the Trust make any representation) has, directly
or indirectly, made offers or
sales
of
any security, or solicited offers to buy any security, under circumstances
that
would require the registration under the Securities Act of any of the
Securities.
(ii)
Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting
on
its or their behalf (except for the Placement Agent, as to which neither the
Company nor the Trust make any representation) has (i) offered for sale or
solicited offers to purchase the Securities, (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of any of the Securities, or (iii) engaged
in
any “directed selling efforts” within the meaning of Regulation S under the
Securities Act (“Regulation S”) with respect to the Securities.
(iii)
The
Securities (i) are not and have not been listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of 1934,
as
amended (the “Exchange Act”), or quoted on a U.S. automated interdealer
quotation system and (ii) are not of an open-end investment company, unit
investment trust or face-amount certificate company that are, or are required
to
be, registered under Section 8 of the Investment Company Act of 1940, as amended
(the “Investment Company Act”), and the Securities otherwise satisfy the
eligibility requirements of Rule 144A(d)(3) promulgated pursuant to the
Securities Act (“Rule 144A(d)(3)”).
(iv)
Neither
the Company nor the Trust is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net proceeds
therefrom, neither the Company nor the Trust will be, an “investment company” or
an entity “controlled” by an “investment company,” in each case within the
meaning of Section 3(a) of the Investment Company Act.
(v)
Neither
the Company nor the Trust has paid or agreed to pay to any person or entity,
directly or indirectly, any fees or other compensation for soliciting another
to
purchase any of the Securities.
4.2
Standing
and Qualification of the Trust
.
The
Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C. §3801,
et
seq
.
(the
“Statutory Trust Act”) with all requisite power and authority to own property
and to conduct the business it transacts and proposes to transact and to enter
into and perform its obligations under the Operative Documents to which it
is a
party. The Trust is duly qualified to transact business as a foreign entity
and
is in good standing in each jurisdiction in which such qualification is
necessary, except where the failure to so qualify or be in good standing would
not have a material adverse effect on the condition (financial or otherwise),
earnings, business, prospects or assets of the Trust, whether or not occurring
in the ordinary course of business. The Trust is not a party to, or otherwise
bound by, any agreement other than the Operative Documents. The Trust is, and
under current law will continue to be, classified for federal income tax
purposes as a grantor trust and not as an association or publicly traded
partnership taxable as a corporation.
4.3
Trust
Agreement
.
The
Trust Agreement has been duly authorized by the Company and, on the Closing
Date
specified in
Section
2.3.1
,
will
have been duly executed and
delivered
by the Company and the Administrative Trustees of the Trust, and, assuming
due
authorization, execution and delivery by the Property Trustee and the Delaware
Trustee, will be a legal, valid and binding obligation of the Company and the
Administrative Trustees, enforceable against them in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity. Each of the
Administrative Trustees of the Trust is an employee of the Company or one of
its
subsidiary banks and has been duly authorized by the Company to execute and
deliver the Trust Agreement. To the knowledge of the Company and the Trust,
the
Trust is not in violation of any provision of the Statutory Trust
Act.
4.4
Guarantee
Agreement and the Indenture
.
Each of
the Guarantee and the Indenture has been duly authorized by the Company and,
on
the Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery by the Guarantee
Trustee, in the case of the Guarantee, and by the Indenture Trustee, in the
case
of the Indenture, will be a legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and to general principles of equity.
4.5
Preferred
Securities and Common Securities
.
The
Preferred Securities and the Common Securities have been duly authorized by
the
Trust and, when issued and delivered against payment therefor on the Closing
Date to the Purchaser in accordance with this Agreement and the Subscription
Agreement, in the case of the Preferred Securities, and to the Company in
accordance with the Common Securities Subscription Agreement between the Company
and the Trust, dated as of the Closing Date, in the case of the Common
Securities, will be validly issued, fully paid and nonassessable and will
represent undivided beneficial interests in the assets of the Trust entitled
to
the benefits of the Trust Agreement, enforceable against the Trust in accordance
with their terms, subject to applicable bankruptcy, insolvency and similar
laws
affecting creditors’ rights generally and to general principles of equity. The
issuance of the Securities is not subject to preemptive or other similar rights.
On the Closing Date, all of the issued and outstanding Common Securities will
be
directly owned by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance (each, a “Lien”).
4.6
Junior
Subordinated Notes
.
The
Junior Subordinated Notes have been duly authorized by the Company and, on
the
Closing Date, will have been duly executed and delivered to the Indenture
Trustee for authentication in accordance with the Indenture and, when
authenticated in the manner provided for in the Indenture and delivered to
the
Trust against payment therefor in accordance with the Junior Subordinated Note
Subscription Agreement between the Company and the Trust, dated as of the
Closing Date, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and to general
principles of equity.
4.7
Placement
Agreement
.
This
Agreement has been duly authorized, executed and delivered by the Company and
the Trust and constitutes the legal, valid and binding obligation of the Company
and the Trust, enforceable against the Company and the Trust in accordance
with
its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity.
4.8
Defaults
.
Neither
the issue and sale of the Common Securities, the Preferred Securities or the
Junior Subordinated Notes, nor the purchase of the Junior Subordinated Notes
by
the Trust, the execution and delivery of and compliance with the Operative
Documents by the Company or the Trust, the consummation of the transactions
contemplated herein or therein, or the use of the proceeds therefrom, (i) will
conflict with or constitute a breach of, or a default under, the Trust Agreement
or the charter or bylaws of the Company or any subsidiary of the Company or
any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of
any government, governmental authority, agency or instrumentality or court,
domestic or foreign, having jurisdiction over the Trust, or the Company or
any
of its subsidiaries, or their respective properties or assets (collectively,
“Governmental Entities”), (ii) except as set forth on
Schedule
4.8
,
will
conflict with or constitute a violation or breach of, or a default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any
Lien upon any property or assets of the Trust, the Company or any of the
Company’s subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which (A) the Trust,
the Company or any of its subsidiaries is a party or by which it or any of
them
may be bound, or (B) any of the property or assets of any of them is subject,
or
any judgment, order or decree of any court, Governmental Entity or arbitrator,
except, in the case of this clause (ii), for such conflicts, breaches,
violations, defaults, Repayment Events (as defined below) or Liens which (X)
would not, singly or in the aggregate, adversely affect the consummation of
the
transactions contemplated by the Operative Documents and (Y) would not, singly
or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, liabilities, prospects and assets (taken
as a
whole) or business prospects of the Company and its subsidiaries taken as a
whole, whether or not occurring in the ordinary course of business (a “Material
Adverse Effect”), or (iii) except as set forth on
Schedule
4.8,
require
the consent, approval, authorization or order of any court or Governmental
Entity. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Trust
or
the Company or any of its subsidiaries prior to its scheduled
maturity.
4.9
Organization,
Standing and Qualification of the Company
.
The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Indiana, with all requisite corporate power
and
authority to own, lease and operate its properties and conduct the business
it
transacts and proposes to transact, and is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where
the
nature of its activities requires such qualification, except where the failure
of the Company to be so qualified would not, singly or in the aggregate, have
a
Material Adverse Effect.
4.10
Subsidiaries
of the Company
.
The
Company has no subsidiaries that are material to its business, financial
condition or earnings other than those subsidiaries listed in
Schedule
4.10
attached
hereto (the “Significant Subsidiaries”). Each Significant Subsidiary has been
duly organized and is validly existing and in good standing under the laws
of
the jurisdiction in which it is chartered or organized, with all requisite
power
and authority to own its properties and
conduct
the business it transacts and proposes to transact. Each Significant Subsidiary
is duly qualified to transact business and is in good standing as a foreign
entity in each jurisdiction where the nature of its activities requires such
qualification, except where the failure of any Significant Subsidiary to be
so
qualified would not, singly or in the aggregate, have a Material Adverse Effect.
4.11
Government
Licenses; Laws
.
Each of
the Trust, the Company and each of its subsidiaries hold all necessary
approvals, authorizations, orders, licenses, certificates and permits
(collectively, “Government Licenses”) of and from Governmental Entities
necessary to conduct its respective business as now being conducted, and neither
the Trust, the Company nor any of the Company’s subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Government License, except where the failure to be so licensed or approved
or
the receipt of an unfavorable decision, ruling or finding, would not, singly
or
in the aggregate, have a Material Adverse Effect; all of the Government Licenses
are valid and in full force and effect, except where the invalidity or the
failure of such Government Licenses to be in full force and effect, would not,
singly or in the aggregate, have a Material Adverse Effect; and the Company
and
its subsidiaries are in compliance with all applicable laws, rules, regulations,
judgments, orders, decrees and consents, except where the failure to be in
compliance would not, singly or in the aggregate, have a Material Adverse
Effect.
4.12
Stock
.
Except
as set forth in
Schedule
4.12
,
all of
the issued and outstanding shares of capital stock of the Company and each
of
its subsidiaries are validly issued, fully paid and nonassessable; all of the
issued and outstanding capital stock of each subsidiary of the Company is owned
by the Company, directly or through subsidiaries, free and clear of any Lien,
claim or equitable right; and none of the issued and outstanding capital stock
of the Company or any subsidiary was issued in violation of any preemptive
or
similar rights arising by operation of law, under the charter or by-laws of
such
entity or under any agreement to which the Company or any of its subsidiaries
is
a party.
4.13
Property
.
Except
as set forth in
Schedule
4.13
,
each of
the Trust, the Company and each subsidiary of the Company has good and
marketable title to all of its respective real and personal properties, in
each
case free and clear of all Liens and defects, except for those that would not,
singly or in the aggregate, have a Material Adverse Effect; and all of the
leases and subleases under which the Trust, the Company or any subsidiary of
the
Company holds properties are in full force and effect, except where the failure
of such leases and subleases to be in full force and effect would not, singly
or
in the aggregate, have a Material Adverse Effect and none of the Trust, the
Company or any subsidiary of the Company has any notice of any claim of any
sort
that has been asserted by anyone adverse to the rights of the Trust, the Company
or any subsidiary of the Company under any such leases or subleases, or
affecting or questioning the rights of such entity to the continued possession
of the leased or subleased premises under any such lease or sublease, except
for
such claims that would not, singly or in the aggregate, have a Material Adverse
Effect.
4.14
Conflicts,
Authorizations and Approvals
.
Neither
the Company nor any of its subsidiaries is (i) in violation of its respective
charter, bylaws or similar organizational documents or (ii) in default in the
performance or observance of any obligation, agreement,
covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which either the Company or
any
such subsidiary is a party or by which it or any of them may be bound or to
which any of the property or assets of any of them is subject, except, in the
case of clause (ii), where such default would not, singly or in the aggregate,
have a Material Adverse Effect. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
Governmental Entity, other than those that have been made or obtained, is
necessary or required for the performance by the Trust or the Company of their
respective obligations under the Operative Documents, as applicable, or the
consummation by the Trust and the Company of the transactions contemplated
by
the Operative Documents.
4.15
Holding
Company Registration and Deposit Insurance
.
The
Company is duly registered as a
bank
holding company under the Bank Holding Company Act of 1956, as amended (the
“
Bank
Holding Company Act
”),
and the regulations of the Board of Governors of the Federal Reserve System
(the
“
Federal
Reserve
”)
,
and the
deposit accounts of the Company’s subsidiary depository institutions are insured
by the Federal Deposit Insurance Corporation (“
FDIC
”)
to the
fullest extent permitted by law and the rules and regulations of the FDIC,
and
no proceeding for the termination of such insurance are pending or, to the
knowledge of the Company or the Trust after due inquiry,
threatened.
4.16
Financial
Statements
.
(a)
The
audited consolidated financial statements (including the notes thereto) and
schedules of the Company and its consolidated subsidiaries at and for the three
fiscal years ended December 31, 2005 (the “Financial Statements”) and the
interim unaudited consolidated financial statements of the Company and its
consolidated subsidiaries at and for the quarter and nine months ended September
30, 2006 (the “Interim Financial Statements”) provided to the Placement Agent
are the most recently available audited and unaudited consolidated financial
statements of the Company and its consolidated subsidiaries, respectively,
and
fairly present in all material respects, in accordance with U.S. generally
accepted accounting principles (“GAAP”), the financial position of the Company
and its consolidated subsidiaries, and the results of operations and changes
in
financial condition as of the dates and for the periods therein specified,
subject, in the case of Interim Financial Statements, to year-end adjustments
(which are expected to consist solely of normal recurring adjustments). Such
consolidated financial statements and schedules have been prepared in accordance
with GAAP consistently applied throughout the periods involved (except as
otherwise noted therein).
(b)
The
Company’s report on FRY-9C, for the period ending September 30, 2006
(the
“FRY-9C”)
,
provided
to the Placement Agent is the most recently available such report, and the
information therein fairly presents in all material respects the financial
position of the Company and its subsidiaries. None of the Company or any of
its
subsidiaries has been requested by a Governmental Entity to republish, restate
or refile any regulatory or financial report.
(c)
Since
the
respective dates of the Financial Statements, Interim Financial Statements
and
the FRY-9C, there has not been (A) any material adverse change or
development
with respect to the condition (financial or otherwise), earnings, business,
assets or business prospects of the Company and its subsidiaries, taken as
a
whole, whether or not occurring in the ordinary course of business or (B)
any
dividend or distribution of any kind declared, paid or made by the Company
on
any class of its capital stock other than regular quarterly dividends on
the
Company’s common stock.
(d)
The
accountants of the Company who certified the Financial Statements are
independent public accountants of the Company and its subsidiaries within the
meaning of the Securities Act and the rules and regulations of the Securities
and Exchange Commission (“SEC”) thereunder.
4.17
Regulatory
Enforcement Matters
.
Except
as set forth in
Schedule
4.17
,
none of
the Trust, the Company nor any of its subsidiaries, nor any of their respective
officers, directors, employees or representatives, is subject or is party to,
or
has received any notice from any Regulatory Agency (as defined below) that
any
of them will become subject or party to any investigation with respect to,
any
cease-and-desist order, agreement, civil monetary penalty, consent agreement,
memorandum of understanding or other regulatory enforcement action, proceeding
or order with or by, or is a party to any commitment letter or similar
undertaking to, or is subject to any directive by, or has been a recipient
of
any supervisory letter from, or has adopted any board resolutions at the request
or suggestion of, any Regulatory Agency that, in any such case, currently
restricts in any material respect the conduct of their business or that in
any
material manner relates to their capital adequacy, their credit policies, their
management or their business (each, a “Regulatory Action”), nor has the Trust,
the Company or any of its subsidiaries been advised by any Regulatory Agency
that it is considering issuing or requesting any such Regulatory Action; and
there is no unresolved violation, criticism or exception by any Regulatory
Agency with respect to any report or statement relating to any examinations
of
the Trust, the Company or any of its subsidiaries, except where such unresolved
violation, criticism or exception would not, singly or in the aggregate, have
a
Material Adverse Effect. It meets the required capital levels for
“well-capitalized” bank holding companies established by the Federal Reserve and
in effect as of the date hereof. Each of the Company’s subsidiaries that is a
depository institution, the accounts of which are insured by the FDIC (i) is
“well-capitalized” within the meaning of 12 U.S.C. §1831o and applicable
implementing regulations thereunder; and (ii) is not, and has not been notified
by any Regulatory Agency that it is, in “troubled condition” within the meaning
of 12 U.S.C. §1831i and applicable implementing regulations thereunder. As used
herein, the term “Regulatory Agency” means any federal or state agency charged
with the supervision or regulation of depository institutions or holding
companies of depository institutions, or engaged in the insurance of depository
institution deposits, or any court, administrative agency or commission or
other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Trust, the Company or any of its
subsidiaries.
4.18
No
Undisclosed Liabilities
.
None of
the Trust, the Company nor any of its subsidiaries has any material liability,
whether known or unknown, whether asserted or unasserted, whether absolute
or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due, including any liability for taxes (and there
is no past or present fact, situation, circumstance, condition or other basis
for any present or future
action,
suit, proceeding, hearing, charge, complaint, claim or demand against the
Company or its subsidiaries that could give rise to any such liability), except
for (i) liabilities set forth in the Financial Statements or the Interim
Financial Statements and (ii) normal fluctuations in the amount of the
liabilities referred to in clause (i) above occurring in the ordinary
course of business of the Trust, the Company and all of its subsidiaries since
the date of the most recent balance sheet included in such Financial
Statements.
4.19
Litigation
.
There is
no action, suit or proceeding before or by any Governmental Entity, arbitrator
or court, domestic or foreign, now pending or, to the knowledge of the Company
or the Trust after due inquiry, threatened against or affecting the Trust or
the
Company or any of the Company’s subsidiaries, except for such actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, adversely affect the consummation of the transactions contemplated
by
the Operative Documents or have a Material Adverse Effect; and the aggregate
of
all pending legal or governmental proceedings to which the Trust or the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is subject, including ordinary routine litigation
incidental to the business, are not expected to result in a Material Adverse
Effect.
4.20
No
Labor Disputes
.
No
labor dispute with the employees of the Trust, the Company or any of its
subsidiaries exists or, to the knowledge of the executive officers of the Trust
or the Company, is imminent, except those which would not, singly or in the
aggregate, have a Material Adverse Effect.
4.21
Filings
with the SEC
.
The
documents of the Company filed with the SEC in accordance with the Exchange
Act,
from and including the commencement of the fiscal year covered by the Company’s
most recent Annual Report on Form 10-K, at the time they were or hereafter
are
filed by the Company with the SEC (collectively, the “1934 Act Reports”),
complied and will comply in all material respects with the requirements of
the
Exchange Act and the rules and regulations of the SEC thereunder (the “1934 Act
Regulations”), and did not, and, at the date of this Agreement and on the
Closing Date, do not and will not include an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; and other than such instruments, agreements, contracts
and
other documents as are filed as exhibits to the Company’s Annual Report on Form
10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, there
are
no instruments, agreements, contracts or documents of a character described
in
Item 601 of Regulation S-K promulgated by the SEC to which the Company or
any of its subsidiaries is a party. The Company is in compliance with all
currently applicable requirements of the Exchange Act and the 1934 Act
Regulations that were added by the Sarbanes-Oxley Act of 2002.
4.22
Deferral
of Interest Payments on Junior Subordinated Notes
.
The
Company has no present intention to exercise its option to defer payments of
interest on the Junior Subordinated Notes as provided in the Indenture. The
Company believes that the likelihood that it would exercise its rights to defer
payments of interest on the Junior Subordinated Notes as provided in the
Indenture at any time during which the Junior Subordinated Notes 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, acquire
or
make a liquidation payment with respect to, any of the Company’s capital stock
and on the Company’s ability to make any payments of principal, interest or
premium on, or repay, repurchase or redeem, any of its debt securities that
rank
pari
passu
in all
respects with or junior in interest to the Junior Subordinated
Notes.
4.23
Tax
Returns
.
The
Company and each of the Significant Subsidiaries have timely and duly filed
all
Tax Returns (defined below) required to be filed by them, and all such Tax
Returns are true, correct and complete in all material respects. The Company
and
each of the Significant Subsidiaries have timely and duly paid in full all
material Taxes required to be paid by them (whether or not such amounts are
shown as due on any Tax Return). There are no federal, state, or other Tax
audits or deficiency assessments proposed or pending with respect to the Company
or any of the Significant Subsidiaries, and no such audits or assessments are
threatened. As used herein, the terms “
Tax
”
or
“
Taxes
”
mean
(i) all federal, state, local, and foreign taxes, and other assessments of
a
similar nature (whether imposed directly or through withholding), including
any
interest, additions to tax, or penalties applicable thereto, imposed by any
Governmental Entity, and (ii) all liabilities in respect of such amounts arising
as a result of being a member of any affiliated, consolidated, combined, unitary
or similar group, as a successor to another person or by contract. As used
herein, the term “
Tax
Returns
”
means
all federal, state, local, and foreign Tax returns, declarations, statements,
reports, schedules, forms, and information returns and any amendments thereto
filed or required to be filed with any Governmental Entity.
4.24
Taxes
.
The
Trust is not subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Notes, interest payable by the
Company on the Junior Subordinated Notes is deductible by the Company, in whole
or in part, for United States federal income tax purposes, and the Trust is
not,
or will not be within ninety (90) days of the date hereof, subject to more
than
a
de
minimis
amount
of other taxes, duties or other governmental charges. There are no rulemaking
or
similar proceedings before the United States Internal Revenue Service or
comparable federal, state, local or foreign government bodies which involve
or
affect the Company or any subsidiary, which, if the subject of an action
unfavorable to the Company or any subsidiary, could result in a Material Adverse
Effect.
4.25
Books
and Records
.
The
books, records and accounts of the Company and its subsidiaries accurately
and
fairly reflect, in reasonable detail, the transactions in, and dispositions
of,
the assets of, and the results of operations of, the Company and its
subsidiaries. The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences
4.26
Insurance.
The
Company and the Significant Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
in
all material respects as are customary in the businesses in which they are
engaged or propose to engage after giving effect to the transactions
contemplated hereby, including, but not limited to, real or personal property
owned or leased against theft, damage, destruction, act of vandalism and all
other risks customarily insured against. All policies of insurance and fidelity
or surety bonds insuring the Company or any of the Significant Subsidiaries
or
the Company’s or Significant Subsidiaries’ respective businesses, assets,
employees, officers and directors are in full force and effect. The Company
and
each of the Significant Subsidiaries are in compliance with the terms of such
policies and instruments in all material respects. Neither the Company nor
any
Significant Subsidiary has reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect. Within the
past twelve months, neither the Company nor any Significant Subsidiary has
been
denied any insurance coverage which it has sought or for which it has
applied.
4.27
Corporate
Funds.
The
Company and its subsidiaries or any person acting on behalf of the Company
and
its subsidiaries including, without limitation, any director, officer, agent
or
employee of the Company or its subsidiaries has not, directly or indirectly,
while acting on behalf of the Company and its subsidiaries (i) used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; (iii) violated
any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made
any other unlawful payment.
4.28
OSHA
Compliance.
Neither
the Company nor any of its subsidiaries is in violation of any federal or state
law or regulation relating to occupational safety and health and the Company
and
its subsidiaries have received all permits, licenses or other approvals required
of them under applicable federal and state occupational safety and health and
environmental laws and regulations to conduct their respective businesses,
and
the Company and each of its subsidiaries is in compliance with all terms and
conditions of any such permit, license or approval, except any such violation
of
law or regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals which would not, singly or in the aggregate result in
a
Material Adverse Effect.
4.29
Information
.
The
information provided by the Company and the Trust pursuant to this Agreement
does not, as of the date hereof, and will not, as of the Closing Date, contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section
5.
Representations
and Warranties of the Placement Agent
.
The
Placement Agent represents and warrants to, and agrees with, the Company and
the
Trust as follows:
5.1
General
Solicitation
.
Neither
the Placement Agent, nor any of the Placement Agent’s affiliates, nor any person
acting on the Placement Agent’s or the Placement Agent’s Affiliate’s behalf has
engaged, or will engage, in any form of “general solicitation or general
advertising” (within the meaning of Regulation D under the Securities Act) in
connection with any offer or sale of the Preferred Securities.
5.2
Purchaser
.
The
Placement Agent has made such reasonable inquiry as is necessary to determine
that the Purchaser is acquiring the Preferred Securities for its own account
and
that the Purchaser does not intend to distribute the Preferred Securities in
contravention of the Securities Act or any other applicable securities
laws.
5.3
Qualified
Purchasers
.
The
Placement Agent has not offered or sold, and will not arrange for the offer
or
sale of, the Preferred Securities except (i) to those the Placement Agent
reasonably believes are institutional “accredited investors” (within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 of Regulation D), (ii)
in an
offshore transaction complying with Rule 903 of Regulation S or (iii) in any
other manner that does not require registration of the Preferred Securities
under the Securities Act. In connection with each such sale, the Placement
Agent
has taken or will take reasonable steps to ensure that the Purchaser is aware
that (a) such sale is being made in reliance on an exemption under the
Securities Act and (b) future transfers of the Preferred Securities may not
be
made except in compliance with applicable securities laws.
5.4
Offering
Circulars
.
Neither
the Placement Agent nor its representatives will include any nonpublic
information about the Company, the Trust or any of their affiliates in any
registration statement, prospectus, offering circular or private placement
memorandum used in connection with any purchase of Preferred Securities without
the prior written consent of the Trust and the Company.
Section
6.
Covenants
of the Offerors
.
The
Offerors covenant and agree with the Placement Agent and the Purchaser as
follows:
6.1
Compliance
with Representations and Warranties
.
During
the period from the date of this Agreement to the Closing Date, the Offerors
shall use their best efforts and take all action necessary or appropriate to
cause their representations and warranties contained in
Section
4
hereof
to be true as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement, as if made on and as of the Closing
Date.
6.2
Sale
and Registration of Securities
.
Neither
the Company nor the Trust will, nor will either of them permit any of its
Affiliates to, nor will either of them permit any person acting on its or their
behalf (other than the Placement Agent and the Purchaser and their respective
affiliates) to, directly or indirectly, (i) resell any Preferred Securities
that
have been acquired by any of them, (ii) sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) that would or could be integrated with the sale of the Preferred
Securities in any manner that would require the registration of the Securities
under the Securities Act or (iii) make offers or sales of any such Security,
or
solicit offers to buy any such
Security,
under any circumstances that would require the registration of any of such
Securities under the Securities Act.
6.3
Integration
.
Neither
the Company nor the Trust will, until one hundred eighty (180) days following
the Closing Date, without the Purchaser’s prior written consent, offer, sell,
contract to sell, grant any option to purchase or otherwise dispose of, directly
or indirectly, (i) any Preferred Securities or other securities of the Trust
other than as contemplated by this Agreement or (ii) any other securities
convertible into, or exercisable or exchangeable for, any Preferred Securities
or other securities of the Trust.
6.4
Qualification
of Securities
.
The
Company and the Trust will arrange for the qualification of the Preferred
Securities for sale under the laws of such jurisdictions as the Placement Agent
may designate and will maintain such qualifications in effect so long as
required for the sale of the Preferred Securities. The Company or the Trust,
as
the case may be, will promptly advise the Placement Agent of the receipt by
the
Company or the Trust, as the case may be, of any notification with respect
to
the suspension of the qualification of the Preferred Securities for sale in
any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
6.5
Use
of
Proceeds
.
The
Trust shall use the proceeds from the sale of the Preferred Securities and
the
Common Securities to purchase the Junior Subordinated Notes from the
Company.
6.6
Investment
Company
.
So long
as any of the Securities are outstanding, (i) the Securities shall not be listed
on a national securities exchange registered under Section 6 of the Exchange
Act
or quoted in a U.S. automated interdealer quotation system, (ii) neither the
Company nor the Trust shall be an open-end investment company, unit investment
trust or face-amount certificate company that is, or is required to be,
registered under Section 8 of the Investment Company Act, and, the Securities
shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3) and
(iii) neither of the Offerors shall engage, or permit any subsidiary to engage,
in any activity which would cause it or any subsidiary to be an “investment
company” under the provisions of the Investment Company Act.
6.7
Solicitation
and Advertising
.
Neither
the Company nor the Trust will, nor will either of them permit any of their
Affiliates or any person acting on their behalf to (other than the Placement
Agent, the Purchaser or their respective affiliates), (i) engage in any
“directed selling efforts” within the meaning of Regulation S under the
Securities Act or (ii) engage in any form of “general solicitation or general
advertising” (within the meaning of Regulation D) in connection with any offer
or sale of any of the Securities.
6.8
Compliance
with Rule 144A(d)(4) under the Securities Act
.
So long
as any of the Securities are outstanding and are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Offerors will,
during any period in which they are not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act, or the Offerors are not exempt from
such reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted securities
and
to each prospective
purchaser
(as designated by such holder) of such restricted securities, upon the request
of such holder or prospective purchaser in connection with any proposed
transfer, any information required to be provided by Rule 144A(d)(4) under
the
Securities Act, if applicable. The information provided by the Offerors pursuant
to this
Section
6.8
will
not, at the date thereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If the
Company and the Trust are required to register under the Exchange Act, such
reports filed in compliance with Rule 12g3-2(b) shall be sufficient information
as required above. This covenant is intended to be for the benefit of the
Purchaser, the holders of the Securities, and the prospective purchasers
designated by such holders, from time to time, of the Securities.
6.9
Reports
.
Each of
the Company and the Trust shall furnish to (i) the Placement Agent, (ii) the
Purchaser and any subsequent holder of the Securities, and (iii) any beneficial
owner of the Securities reasonably identified to the Company and the Trust
(which identification may be made by either such beneficial owner or by the
Purchaser), a duly completed and executed certificate in the form attached
hereto as
Annex
F
,
including the financial statements referenced in such Annex, which certificate
and financial statements shall be so furnished by the Company and the Trust
not
later than forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and not later than ninety (90)
days
after the end of each fiscal year of the Company.
6.10
Clearing
and Settlement
.
The
Company and the Trust will cooperate with the Purchaser (or any holder of the
Preferred Securities) and use all commercially reasonable efforts to make the
Preferred Securities eligible for clearance and settlement as book-entry
securities through the facilities of the Depository Trust Company (“DTC”) and
listed for trading through the PORTAL Market (“PORTAL”), and will execute,
deliver and comply with all representations made to, and agreements with, DTC
and PORTAL. This Section 6.10 will survive delivery of and payment for the
Preferred Securities.
Section
7.
Covenants
of the Placement Agent
.
The
Placement Agent covenants and agrees with the Offerors that, during the period
from the date of this Agreement to the Closing Date, the Placement Agent shall
use its best efforts and take all action necessary or appropriate to cause
its
representations and warranties contained in
Section
5
to be
true as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement, as if made on and as of the Closing Date. The
Placement Agent further covenants and agrees not to engage in hedging
transactions with respect to the Preferred Securities unless such transactions
are conducted in compliance with the Securities Act.
Section
8.
Indemnification
& Contribution
.
8.1
Indemnification
.
8.1.1
The
Company and the Trust agree jointly and severally to indemnify and hold harmless
the Placement Agent, the Purchaser, a Subsequent Purchaser and their respective
affiliates (collectively, the “Indemnified Parties”) and the Indemnified
Parties’ respective
directors,
officers, employees and agents and each person who “controls” the Indemnified
Parties within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
information or documents furnished or made available to the Purchaser or the
Placement Agent by or on behalf of the Company, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) the breach
or
alleged breach of any representation, warranty or agreement of either Offeror
contained herein, and agrees to reimburse each such Indemnified Party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Company or the Trust may otherwise have.
8.1.2
Promptly
after receipt by an Indemnified Party under this
Section 8
of
notice of the commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 8
,
promptly notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve
the indemnifying party from liability under
Section
8.1.1
above
unless and to the extent that such failure results in the forfeiture by the
indemnifying party of material rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
Indemnified Party other than the indemnification obligation provided in
Section
8.1.1
above.
The Placement Agent shall be entitled to appoint counsel to represent the
Indemnified Party in any action for which indemnification is sought. An
indemnifying party may participate at its own expense in the defense of any
such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the Indemnified Party) also be counsel to the
Indemnified Party. In no event shall the indemnifying parties be liable for
fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all Indemnified Parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
An
indemnifying party will not, without the prior written consent of the
Indemnified Parties, 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 may be sought hereunder (whether
or not the Indemnified Parties are actual or potential parties to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all liability
arising out of such claim, action, suit or proceeding.
8.2
Contribution
.
8.2.1
In
order
to provide for just and equitable contribution in circumstances under which
the
indemnification provided for in
Section
8.1
hereof
is for any reason held to be unenforceable for the benefit of an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to
the
aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such Indemnified Party, as incurred, (i) in such proportion as is appropriate
to
reflect the relative benefits received by the Offerors, on the one hand, and
the
Placement Agent, on the other hand, from the offering of the Securities or
(ii)
if the allocation provided by clause (i) is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in
clause
(i)
above,
but also the relative fault of the Offerors, on the one hand, and the Placement
Agent, on the other hand, in connection with the statements, omissions or
breaches, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
8.2.2
The
relative benefits received by the Offerors, on the one hand, and the Placement
Agent, on the other hand, in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities (before deducting expenses)
received by the Offerors and the Fee paid to the Introducing Agent bear to
the
aggregate of such net proceeds and the Fee.
8.2.3
The
Offerors and the Placement Agent agree that it would not be just and equitable
if contribution pursuant to this
Section 8.2
were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this
Section 8.2
.
The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this
Section 8.2
shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement, omission or alleged omission or breach
or
alleged breach.
8.2.4
Notwithstanding
any provision of this
Section 8
to the
contrary, the Placement Agent shall not be required to contribute any amount
in
excess of the amount of the Fee.
8.2.5
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was
not guilty of such fraudulent misrepresentation.
8.2.6
For
purposes of this
Section 8.2
,
the
Placement Agent, each person, if any, who controls the Placement Agent within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the respective partners, directors, officers, employees and
agents of the Placement Agent or any such controlling person shall have the
same
rights to contribution as the Placement Agent, while each officer and director
of the Company, each trustee of the Trust and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution
as the Offerors.
8.3
Additional
Remedies
.
The
indemnity and contribution agreements contained in this
Section
8
are in
addition to any liability that the Offerors may otherwise have to any
Indemnified Party.
8.4
Additional
Indemnification
.
The
Company shall indemnify and hold harmless the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under
Sections
8.1
through
8.3
hereof.
Section
9.
Rights
and Responsibilities of Placement Agent
.
9.1
Reliance
.
In
performing its duties under this Agreement, the Placement Agent shall be
entitled to rely upon any notice, signature or writing which it shall in good
faith believe to be genuine and to be signed or presented by a proper party
or
parties. The Placement Agent may rely upon any opinions or certificates or
other
documents delivered by the Offerors or their counsel or designees to either
the
Placement Agent or the Purchaser.
9.2
Rights
of Placement Agent
.
In
connection with the performance of its duties under this Agreement, the
Placement Agent shall not be liable for any error of judgment or any action
taken or omitted to be taken unless the Placement Agent was grossly negligent
or
engaged in willful misconduct in connection with such performance or
non-performance. No provision of this Agreement shall require the Placement
Agent to expend or risk its own funds or otherwise incur any financial liability
on behalf of the Purchaser in connection with the performance of any of its
duties hereunder. The Placement Agent shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement.
Section
10.
Termination
.
This
Agreement shall be subject to termination in the absolute discretion of the
Placement Agent, by notice given to the Company and the Trust prior to delivery
of and payment for the Preferred Securities, if prior to such time (i) a
downgrading shall have occurred in the rating accorded the Company’s debt
securities or preferred stock by any “nationally recognized statistical rating
organization,” as that term is used by the SEC in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act, or such organization shall have publicly announced that it
has
under surveillance or review, with possible negative implications, its rating
of
the Company’s debt securities or preferred stock, (ii) the Trust shall be unable
to sell and deliver to the Purchaser at least $12,000,000 aggregate stated
liquidation value of Preferred Securities, (iii) the Company or any of its
subsidiaries that is an insured depository institution shall cease to be
“adequately-capitalized” within the meaning of 12 U.S.C. Section 1831 and
applicable regulations adopted thereunder, or any formal administrative or
judicial action is taken by any appropriate federal banking agency against
the
Company or any such insured subsidiary for unsafe and unsound banking practices,
or violations of law, (iv) a suspension or material limitation in trading in
securities generally shall have occurred on the New York Stock Exchange, (v)
a
suspension or material limitation in trading in any of the Company’s securities
shall have occurred on the exchange or quotation system upon which the Company’s
securities are traded, if any, (vi) a general moratorium on commercial
banking activities shall have been declared either by federal or Indiana
authorities or (vii) there shall have occurred any outbreak or escalation
of hostilities, or declaration by the United States of a national emergency
or
war or other calamity or crisis the effect of which on financial markets is
such
as to make it, in the Placement Agent’s or the Purchaser’s judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Preferred Securities.
Section
11.
Miscellaneous
.
11.1
Disclosure
Schedule
.
The term
“Disclosure Schedule,” as used herein, means the schedule, if any, attached to
this Agreement that sets forth items the disclosure of which is necessary or
appropriate as an exception to one or more representations or warranties
contained in
Section
4
hereof.
The Disclosure Schedule shall be arranged in paragraphs corresponding to the
section numbers contained in
Section
4
.
Nothing
in the Disclosure Schedule shall be deemed adequate to disclose an exception
to
a representation or warranty made herein unless the Disclosure Schedule
identifies the exception with reasonable particularity and describes the
relevant facts in reasonable detail. Without limiting the generality of the
immediately preceding sentence, the mere listing (or inclusion of a copy) of
a
document or other item in the Disclosure Schedule shall not be deemed adequate
to disclose an exception to a representation or warranty made herein unless
the
representation or warranty has to do with the existence of the document or
other
item itself. Information provided by the Company in response to any due
diligence questionnaire shall not be deemed part of the Disclosure Schedule
and
shall not be deemed to be an exception to one or more representations or
warranties contained in
Section
4
hereof
unless such information is specifically included on the Disclosure Schedule
in
accordance with the provisions of this
Section
11.1
.
11.2
Notices
.
All
communications hereunder will be in writing and effective only on receipt,
and
will be mailed, delivered by hand or courier or sent by facsimile and
confirmed:
I
f
to the
Placement Agent, to:
J.P.
Morgan Securities Inc.
270
Park
Avenue
New
York,
New York 10017
Facsimile:
(212) 834-6027
Attention:
The CDO Group
with
a
copy to:
Thacher
Proffitt & Wood LLP
Two
World
Financial Center
New
York,
New York 10281
Facsimile:
(212) 912-7751
Telephone:
(212) 912-7400
Attention:
Mark I. Sokolow, Esq.
if
to the
Offerors, to:
Horizon
Bancorp
515
Franklin Square
Michigan
City, Indiana 46360
Facsimile:
(219) 874-9280
Telephone:
(219) 879-0211
Attention:
Chief Financial Officer
All
such
notices and communications shall be deemed to have been duly given (i) at the
time delivered by hand, if personally delivered, (ii) five business days after
being deposited in the mail, postage prepaid, if mailed, (iii) when answered
back, if telexed, (iv) the next business day after being telecopied, or (v)
the
next business day after timely delivery to a courier, if sent by overnight
air
courier guaranteeing next-day delivery. From and after the Closing, the
foregoing notice provisions shall be superseded by any notice provisions of
the
Operative Documents under which notice is given. The Placement Agent, the
Company, and their respective counsel, may change their respective notice
addresses, from time to time, by written notice to all of the foregoing
persons.
11.3
Parties
in Interest, Successors and Assigns
.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person
other than the parties hereto and the affiliates, directors, officers,
employees, agents and controlling persons referred to in
Section
8
hereof,
their successors, assigns, heirs and legal representatives, and any Subsequent
Purchaser, any right or obligation hereunder. None of the rights or obligations
of the Company or the Trust under this Agreement may be assigned, whether by
operation of law or otherwise, without the Placement Agent’s prior written
consent. The rights and obligations of the Placement Agent and the Purchaser
under this Agreement may be assigned by such party without the Company’s or the
Trust’s consent; provided that the assignee assumes the obligations of such
party under this Agreement.
11.4
Amendments
.
This
Agreement may not be modified, amended, altered or supplemented, except upon
the
execution and delivery of a written agreement by each of the parties
hereto.
11.5
Counterparts
and Facsimile
.
This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. This
Agreement may be executed by any one or more of the parties hereto by facsimile
which shall be effective as delivery of a manually executed counterpart
hereof.
11.6
Headings
.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
11.7
Governing
Law
.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF
LAW
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
11.8
Submission
to Jurisdiction
.
ANY
LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO
OR
ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND
DELIVERY
OF THIS AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT
OF OR
IN CONNECTION WITH THIS AGREEMENT.
11.9
Entire
Agreement
.
This
Agreement, together with the Operative Documents and the other documents
delivered in connection with the transactions contemplated by this Agreement,
is
intended by the parties as a final expression of their agreement and intended
to
be a complete and exclusive statement of the agreement and understanding of
the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, together
with
the Operative Documents and the other documents delivered in connection with
the
transaction contemplated by this Agreement, supersedes all prior agreements
and
understandings between the parties with respect to such subject
matter.
11.10
Severability
.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that all of the Placement Agent’s and the Purchaser’s rights and
privileges shall be enforceable to the fullest extent permitted by
law.
11.11
Survival
.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company and the Trust and their respective officers or
trustees and of the Placement Agent set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Placement Agent, the Purchaser, the Company or
the
Trust or any of their respective officers, directors, trustees or controlling
persons, and will survive delivery of and payment for the Preferred Securities.
The provisions of
Sections
2.4
and
8
shall
survive the termination or cancellation of this Agreement.
Signatures
appear on the following page
IN
WITNESS WHEREOF, this Placement Agreement has been entered into as of the date
first written above.
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Horizon
Bancorp
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By:
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/s/
Craig M. Dwight
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Craig
M. Dwight
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President
and Chief Executive Officer
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HORIZON
BANCORP CAPITAL TRUST III,
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By:
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HORIZON
BANCORP
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as Depositor
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By:
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/s/
James H. Foglesong
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James
H. Foglesong
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Chief
Financial Officer
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CONFIRMED
AND ACCEPTED
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as
of the date first set forth above
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J.P.
MORGAN SECURITIES INC.
,
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as
Placement Agent
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By:
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/s/
Kelly Absher
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Name:
Kelly Absher
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Title:
V.P.
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Schedule
4.8
Defaults
1.
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The
Company is a party to a certain Credit Agreement with JP Morgan Chase
Bank, N.A. dated June 8, 2005, a certain $12,000,000 Line of Credit
Note
dated May 12, 2006, and certain other related loan and security documents
(collectively, the “Chase Loan Documents”) which restrict, among other
things, the Company’s ability to incur certain other indebtedness,
incurring the indebtedness represented by the Notes, and guaranteeing
or
becoming liable on the debts of another party. Pursuant to these
Chase
Loan Documents, the Company has also pledged all of the stock of
Horizon
Bank, N.A. as security for the loans. On November 27, 2006, however,
the
Company received the consent of JP Morgan Chase Bank, N.A. to engage
in
the transactions contemplated by this
Agreement.
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2.
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Pursuant
to Regulation Y, the issuance of trust preferred securities (and
the entry
into the other typical transaction and financial arrangement in
connections therewith) is required to be approved by the Federal
Reserve
Board. The Company has received approval from the Federal Reserve
Board of
Chicago to issue the Preferred Securities and enter into all of the
other
agreements and transactions contemplated by this Agreement.
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Schedule
4.10
List
of
Significant Subsidiaries
Horizon
Bank N.A.
Horizon
Trust and Investment Management, N.A.
Schedule
4.12
Liens
on
Subsidiary Stock
1.
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The
Company pledged all of the outstanding common shares of Horizon Bank,
N.A.
held by it as security for the loans with JP Morgan Chase Bank N.A.
described on Schedule 4.8.
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Schedule
4.13
Liens
on Property
1.
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The
Company pledges various securities held in its investment portfolio
as
security for certain securities repurchase agreements it enters into
in
the ordinary course of managing its investment portfolio.
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2.
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The
Company has also pledged certain mortgage loans and other portfolio
securities as security for its borrowings from the Federal Home Loan
Bank
of Indianapolis.
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3.
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The
disclosures set forth in item 1 on Schedule 4.8 are incorporated
into this
Schedule by this reference.
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4.
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The
disclosures set forth in Schedule 4.12 are incorporated into this
Schedule
by this reference.
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Schedule
4.17
Regulatory
Enforcement Matters
During
the course of a routine periodic examination by Horizon Bank's regulators
(the
FDIC and the OCC) that commenced in February 2003, the examination personnel
raised the issue of whether the Bank's mortgage warehouse loans should be
treated as “other loans” rather than “home mortgage loans” for call report
purposes. If these loans are treated as “other loans” for regulatory reporting
purposes, it would change the calculations for risk-based capital and reduce
the
Bank's and Horizon Bancorp’s risk-based capital ratios. Horizon submitted a
position statement to the regulators on this issue during the Spring of 2003,
and since that time, the regulators have not requested or required that Horizon
change the manner in which it is treating these loans. In the last conversation
Horizon had with the regulators, Horizon was informed that the regulators
were
still considering the issue.
Management
believes that it has properly characterized the loans in its mortgage warehouse
loan portfolio for risk-based capital purposes, but if the regulators decide
to
force a resolution of this issue, there is no assurance that the regulators
will
concur with Horizon’s determination. Should the call report classification of
the loans be changed, Horizon Bancorp and the Bank would still be categorized
as
well capitalized at September 30, 2006 as well as at the end of each calendar
quarter in 2002, 2003, 2004, and 2005.
EXHIBIT
A
FORM
OF
SUBSCRIPTION AGREEMENT
PREFERRED
SECURITIES SUBSCRIPTION
AGREEMENT
December
15, 2006
THIS
PREFERRED SECURITIES SUBSCRIPTION AGREEMENT
(this
“Agreement”) made among Horizon Bancorp Capital Trust III (the “Trust”), a
statutory trust created under the Delaware Statutory Trust Act (12 Del. C.
§3801,
et
seq
.),
Horizon Bancorp, an Indiana corporation, with its principal offices located
at
515 Franklin Square, Michigan City, Indiana 46360 (the “Company” and, together
with the Trust, the “Offerors”), TWE, Ltd., an exempted company incorporated
under the laws of the Cayman Islands (the “Purchaser”), and
J.P.
Morgan Securities Inc.
(as
to
Sections 1.2, 1.3 and Article III).
RECITALS:
A.
The
Trust desires to issue an aggregate of
TWELVE
MILLION
AND
00/100 ($12,000,000)
DOLLARS
of its
Floating Rate Preferred Securities (the “Preferred Securities”), liquidation
amount $1,000 per Preferred Security, representing an undivided beneficial
interest in the assets of the Trust (the “Offering”), to be issued pursuant to
an Amended and Restated Trust Agreement (the “Trust Agreement”) by and among the
Company, Wilmington Trust Company, as Property Trustee (the “Property Trustee”),
Wilmington Trust Company, as Delaware Trustee, the administrative trustees
named
therein and the Holders (as defined therein), which Preferred Securities are
to
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise pursuant to the terms of a Guarantee
Agreement between the Company and Wilmington Trust Company, as Guarantee Trustee
(the “Guarantee”); and
B.
The
proceeds from the sale of the Preferred Securities will be combined with the
proceeds from the sale by the Trust to the Company of its Common Securities,
and
will be used by the Trust to purchase an equivalent amount of Floating Rate
Junior Subordinated Notes of the Company (the “Notes”) to be issued by the
Company pursuant to an indenture (the “Indenture”) to be executed by the Company
and Wilmington Trust Company, as Indenture Trustee; and
C.
In
consideration of the premises and the mutual representations and covenants
hereinafter set forth, the parties hereto agree as follows:
Article
I
PURCHASE
AND SALE OF PREFERRED SECURITIES
1.1
Upon
the
execution of this Agreement, the Purchaser hereby agrees to purchase, directly
or indirectly, from the Trust, Preferred Securities at a price equal to $1,000
per Preferred Security for an aggregate purchase price equal to
TWELVE
MILLION
AND
00/100 ($12,000,000)
DOLLARS
(the
“Purchase Price”), and the Trust agrees to sell such Preferred Securities to the
Purchaser for said Purchase Price. The rights and preferences of the
Preferred
Securities
are set forth in the Trust Agreement. The closing of the sale and purchase
of
the Preferred Securities by the Offerors to the Purchaser shall occur on
December 15, 2006, or such other later date (not later than January 15, 2007)
as
the parties may designate (the “Closing Date”). The Purchase Price is payable in
immediately available funds on the Closing Date. The Offerors shall provide
the
Purchaser payment instructions no later than two (2) days prior to the Closing
Date.
1.2
The
Placement Agreement, dated as of December 15, 2006 (the “Placement Agreement”),
among the Offerors and the Placement Agent identified therein (the “Placement
Agent”) includes certain representations and warranties, covenants and
conditions to closing and certain other matters governing the Offering. The
Placement Agreement is hereby incorporated by reference into this Agreement,
and
the Purchaser shall be entitled to each of the benefits of the Placement Agent
and the Purchaser under the Placement Agreement, subject to the limitations,
qualifications, acknowledgements and exceptions contained therein (except for
the rights of the Placement Agent under Sections 2.1 and 2.4 of the Placement
Agreement) and shall be entitled to enforce the obligations of the Offerors
under such Placement Agreement as fully as if the Purchaser were a party to
such
Placement Agreement.
1.3
The
Purchaser is purchasing the Preferred Securities in its capacity as a warehouse
entity, and the Purchaser may resell the Preferred Securities to a subsequent
purchaser (any such purchaser from the Purchaser and, if such purchaser is
a
warehouse entity, the next subsequent purchaser that is not a warehouse entity,
being referred to hereinafter as a “Subsequent Purchaser”). Upon transfer of the
Preferred Securities to a Subsequent Purchaser, the Subsequent Purchaser shall
be entitled to each of the benefits of the Placement Agent and the Purchaser
under the Placement Agreement, subject to the limitations, qualifications,
acknowledgments and exceptions contained therein and herein (except for the
rights of the Placement Agent under Sections 2.1 and 2.4 of the Placement
Agreement) and this Agreement, and shall be entitled to enforce the obligations
of the Offerors under the Placement Agreement and this Agreement, as fully
as if
the Subsequent Purchaser were a party to the Placement Agreement and this
Agreement.
Article
II
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
2.1
The
Purchaser understands and acknowledges that the Preferred Securities, the Notes
and the Guarantee (i) have not been registered under the Securities Act of
1933,
as amended (the “Securities Act”), or any other applicable securities law, (ii)
are being offered for sale by the Trust in transactions not requiring
registration under the Securities Act and (iii) may not be offered, sold,
pledged or otherwise transferred by the Purchaser except in compliance with
the
registration requirements of the Securities Act or any other applicable
securities laws, pursuant to an exemption therefrom or in a transaction not
subject thereto.
2.2
The
Purchaser represents and warrants that it is purchasing the Preferred Securities
for its own account and not with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act or other
applicable securities laws, subject
to
any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Preferred Securities
pursuant to an effective registration statement under the Securities Act or
under Rule 144A or any other exemption from registration available under the
Securities Act or any other applicable securities law. The Purchaser understands
that no public market exists for any of the Preferred Securities, and that
it is
unlikely that a public market will ever exist for the Preferred
Securities.
2.3
The
Purchaser represents and warrants that (a) it has consulted with its own legal,
regulatory, tax, business, investment, financial and accounting advisers in
connection herewith to the extent it has deemed necessary; (b) it has had a
reasonable opportunity to ask questions of and receive answers from officers
and
representatives of the Offerors concerning their respective financial condition
and results of operations and the purchase of the Preferred Securities and
any
such questions have been answered to its satisfaction; (c) it has had the
opportunity to review all publicly available records and filings concerning
the
Offerors and it has carefully reviewed such records and filings that it
considers relevant to making an investment decision; and (d) it has made its
own
investment decisions based upon its own judgment, due diligence and advice
from
such advisers as it has deemed necessary and not upon any view expressed by
the
Offerors or the Placement Agent.
2.4
The
Purchaser represents and warrants that it is (i) an institutional “accredited
investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
of Regulation D under the Securities Act, and (ii) a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act.
Article
III
MISCELLANEOUS
3.1
Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by registered or certified mail, return receipt requested,
international courier or delivered by hand against written receipt therefor,
or
by facsimile transmission and confirmed by telephone, to the following
addresses, or such other address as may be furnished to the other parties as
herein provided:
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To
the Offerors:
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Horizon
Bancorp
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515
Franklin Square
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Michigan
City, Indiana 46360
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Fax:
(219) 874-9280
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Attention: Chief
Financial Officer
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To
the Purchaser:
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TWE,
Ltd.
c/o
Maples Finance Limited
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P.O.
Box 1093 GT
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Queensgate
House
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South
Church Street
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George
Town
Grand
Cayman, Cayman Islands
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Fax:
(345) 945-7100
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Attention:
The Directors
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Unless
otherwise expressly provided herein, notices shall be deemed to have been given
on the date of mailing, except notice of change of address, which shall be
deemed to have been given when received.
3.2
This
Agreement shall not be changed, modified or amended except by a writing signed
by the parties to be charged, and this Agreement may not be discharged except
by
performance in accordance with its terms or by a writing signed by the party
to
be charged.
3.3
Upon
the
execution and delivery of this Agreement by the Purchaser, this Agreement shall
become a binding obligation of the Purchaser with respect to the purchase of
Preferred Securities as herein provided.
3.4
NOTWITHSTANDING
THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO,
THE
PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5
The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Agreement.
3.6
This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original, but all of which shall together constitute one and the
same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
3.7
In
the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that all of the Offerors’ and the Purchaser’s rights and privileges
shall be enforceable to the fullest extent permitted by law.
3.8
No
recourse shall be had to any subscriber, officer, director, employee, trustee,
equity holder, certificate holder, incorporator or agent of the Purchaser or
their respective successors or assigns for any obligations hereunder. The
Offerors, severally and jointly, further agree (i) not to take any action in
respect of any claims hereunder against any subscriber, officer, director,
employee, trustee, equity holder, certificate holder, incorporator or agent
of
the Purchaser or any of their successors or assigns that is an investment
vehicle issuing collateralized debt obligations and (ii) not to institute
against any successor or assign of the Purchaser that is an investment vehicle
issuing collateralized debt obligations any insolvency, bankruptcy,
reorganization,
liquidation or similar proceedings in any jurisdiction until one year and one
day or, if longer, the applicable preference period then in effect, as the
case
may be, shall have elapsed since the final payments to the holders of the
securities issued by such investment vehicle.
Signatures
appear on the following page
IN
WITNESS WHEREOF, this Agreement is agreed to and accepted as of the day and
year
first written above.
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TWE,
LTD.
,
as Purchaser,
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By:
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TRAPEZA
CAPITAL MANAGEMENT, LLC
,
as
Portfolio Manager
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By:
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Name:
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Title:
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HORIZON
BANCORP
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By:
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HORIZON
BANCORP CAPITAL TRUST III
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By:
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HORIZON
BANCORPE, as Depositor
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By:
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J.P.
MORGAN SECURITIES INC.
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as
Placement Agent
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(for
purposes of the rights and obligations in Sections 1.2, 1.3 and
Article
III only)
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By:
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Name:
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Title:
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EXHIBIT
B-1
FORM
OF
THACHER PROFFITT & WOOD LLP OPINION
Pursuant
to Section 3.2(a) of the Placement Agreement, Thacher Proffitt & Wood LLP,
special counsel for the Placement Agent and the Purchaser, shall deliver an
opinion to the effect that:
(i)
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the
Company and each Significant Subsidiary is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which
it is chartered or organized;
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(ii)
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the
Company has corporate power and authority to (a) execute and deliver,
and
to perform its obligations under, the Operative Documents to which
it is a
party and (b) issue and perform its obligations under the
Notes;
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(iii)
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neither
the issue and sale of the Common Securities, the Preferred Securities
or
the Junior Subordinated Notes, nor the purchase by the Trust of the
Junior
Subordinated Notes, nor the execution and delivery of and compliance
with
the Operative Documents by the Company or the Trust nor the consummation
of the transactions contemplated thereby will constitute a breach
or
violation of the Trust Agreement or the charter or by-laws of the
Company;
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(iv)
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the
Amended and Restated Trust Agreement has been duly authorized, executed
and delivered by the Company and duly executed and delivered by the
Administrative Trustees;
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(v)
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each
of the Guarantee and the Indenture has been duly authorized, executed
and
delivered by the Company and, assuming it has been duly authorized,
executed and delivered by the Guarantee Trustee and the Indenture
Trustee,
respectively, constitutes a legal, valid and binding obligation of
the
Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of
equity;
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(vi)
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the
Junior Subordinated Notes have been duly authorized and executed
by the
Company and delivered to the Indenture Trustee for authentication
in
accordance with the Indenture and, when authenticated in accordance
with
the provisions of the Indenture and delivered to the Trust against
payment
therefor, will constitute legal, valid and binding obligations of
the
Company entitled to the benefits of the Indenture and enforceable
against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and to general principles of equity;
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(vii)
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the
Trust is not, and, following the issuance of the Preferred Securities
and
the consummation of the transactions contemplated by the Operative
Documents and the application of the proceeds therefrom, the Trust
will
not be, an “investment company” or an entity “controlled” by an
“investment company,” in each case within the meaning of Section 3(a) of
the Investment Company Act;
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(viii)
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assuming
(a) the accuracy of the representations and warranties, and compliance
with the agreements contained in the Placement Agreement and (b)
that the
Preferred Securities are sold in a manner contemplated by, and in
accordance with the Placement Agreement, the Subscription Agreement
and
the Amended and Restated Trust Agreement, it is not necessary in
connection with the offer, sale and delivery of the Preferred Securities
by the Trust to the Purchaser, to register any of the Securities
under the
Securities Act or to require qualification of the Indenture under
the
Trust Indenture Act of 1939, as
amended;
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(ix)
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the
Placement Agreement and the Subscription Agreement have been duly
authorized, executed and delivered by the Company and the Trust;
and,
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(x)
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the Indenture
constitutes a valid and binding instrument of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its
terms,
except
as rights to indemnity and contribution thereunder may be limited
under
applicable law or public policy, and subject to the qualifications
that
(i) enforcement thereof may be limited by bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, moratorium
or other laws (including the laws of fraudulent conveyance and transfer)
or judicial decisions affecting the enforcement of creditors’ rights
generally or the reorganization of financial institutions and (ii)
the
enforceability of the Indenture Trustee’s obligations thereunder is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and to
the effect of certain laws and judicial decisions upon the availability
and enforceability of certain remedies, including the remedies of
specific
performance and self-help
.
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In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of New York, the Delaware General
Corporation Law and the federal laws of the United States; (B) as to
matters involving the application of laws of any jurisdiction other than the
State of New York and the Delaware General Corporation Law or the federal
laws of the United States, (i) rely, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to the Purchaser or (ii) assume
such law is substantially similar to the law of the State of New York and,
(C)
as to matters of fact, rely to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
EXHIBIT
B-2
FORM
OF
COMPANY COUNSEL OPINION
OR
OFFICERS’ CERTIFICATE
Pursuant
to Section 3.2(b) of the Placement Agreement, either (i) counsel for the Company
shall deliver an opinion, or (ii) the General Counsel of the Company shall
deliver an opinion, or, (iii) if the Company does not have a General Counsel
or
Chief Legal Officer, the Chief Executive Officer and Chief Financial Officer
of
the Company shall provide an Officers’ Certificate, to the effect
that:
(i)
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all
of the issued and outstanding shares of capital stock of each Significant
Subsidiary are owned of record by the Company or subsidiary of the
Company, and the issuance of the Preferred Securities and the Common
Securities is not subject to any contractual preemptive rights known
to
such counsel;
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(ii)
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no
consent, approval, authorization or order of any court or governmental
authority is required for the issue and sale of the Common Securities,
the
Preferred Securities or the Junior Subordinated Notes, the purchase
by the
Trust of the Junior Subordinated Notes, the execution and delivery
of and
compliance with the Operative Documents by the Company or the Trust
or the
consummation of the transactions contemplated in the Operative Documents,
except such approvals (specified in such [opinion/certificate]) as
have
been obtained;
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(iii)
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to
the knowledge of such counsel, there is no action, suit or proceeding
before or by any government, governmental instrumentality, arbitrator
or
court, domestic or foreign, now pending or threatened against or
affecting
the Trust or the Company or any Significant Subsidiary that could
adversely affect the consummation of the transactions contemplated
by the
Operative Documents or could have a Material Adverse Effect on the
Company
and its subsidiaries on a consolidated basis, except for the agreement
with the Office of the Comptroller of the Currency (“OCC”) to maintain
certain capital levels and the unresolved dispute with the OCC regarding
the Company’s classification of certain mortgage warehouse loans for call
report purposes;
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(iv)
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the
Company is duly registered as a bank
holding
company
under the Bank Holding Company Act
and
the regulations thereunder of the Federal Reserve Board, and the
deposit
accounts of the Company’s banking subsidiary are insured by the FDIC to
the fullest extent permitted by law and the rules and regulations
of the
FDIC, and no proceeding for the termination of such insurance are
pending
or, to such person’s knowledge,
threatened;
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(v)
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The
execution, delivery and performance of the Operative Documents, as
applicable, by the Company and the Trust and the consummation by
the
Company and the Trust of the transactions contemplated by the Operative
Documents, as applicable, (a) will not result in any violation of
the
articles
of incorporation
or
bylaws of the Company, the articles of incorporation or bylaws of
each
Significant Subsidiary, the Amended and Restated Trust Agreement
or the
Certificate of Trust, and (b) will not conflict with, or result in
a
breach
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of
any of
the terms or provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in
the creation or imposition of any lien, charge and encumbrance upon any assets
or properties of the Company or any Significant Subsidiary under, (A) any
agreement, indenture, mortgage or instrument that the Company or any Significant
Subsidiary of the Company is a party to or by which it may be bound or to which
any of its assets or properties may be subject, or (B) any existing applicable
law, rule or administrative regulation of any court or governmental agency
or
authority having jurisdiction over the Company or any Significant Subsidiary
of
the Company or any of their respective assets or properties, except in case
of
(b), where any such violation, conflict, breach, default, lien, charge or
encumbrance, would not have a material adverse effect on the assets, properties,
business, results of operations or financial condition of the Company and its
subsidiaries, taken as whole and except for such violations, conflicts,
breaches, defaults, liens, charges or encumbrances that have been waived or
consented to by the other parties to such arrangements.
All
terms
used but not defined herein shall have the meanings assigned to them in the
Placement Agreement. A Subsequent Purchaser shall be entitled to rely on this
opinion.
EXHIBIT
B-3
FORM
OF
TAX COUNSEL OPINION
Pursuant
to Section 3.2(c) of the Placement Agreement, Barnes & Thornburg LLP, tax
counsel for the Offerors, shall deliver an opinion to the effect
that:
(i)
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the
Trust will be classified for United States federal income tax purposes
as
a grantor trust and not as an association or a publicly traded partnership
taxable as a corporation; and
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(ii)
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for
United States federal income tax purposes, the Junior Subordinated
Notes
will constitute indebtedness of the
Company.
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In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Indiana and the federal laws of the
United States and (B) rely as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials.
EXHIBIT
B-4
FORM
OF
DELAWARE COUNSEL TRUST OPINION
Pursuant
to Section 3.2(d) of the Placement Agreement,
Morris
James LLP
,
special
Delaware counsel for the Trust, shall deliver an opinion to the effect
that:
(i)
|
The
Trust has been duly created and is validly existing in good standing
as a
statutory trust under the Delaware Statutory Trust Act, and all filings
required under the laws of the State of Delaware with respect to
the
creation and valid existence of the Trust as a statutory trust have
been
made.
|
(ii)
|
Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the Trust has the trust power and authority (i) to own
property
and conduct its business, all as described in the Amended and Restated
Trust Agreement, (ii) to execute and deliver, and to perform its
obligations under, each of the Placement Agreement, the Subscription
Agreement, the Common Securities Subscription Agreement, the Junior
Subordinated Note Subscription Agreement and the Preferred Securities
and
the Common Securities and (iii) to purchase and hold the Junior
Subordinated Notes.
|
(iii)
|
Under
the Delaware Statutory Trust Act, the certificate attached to the
Amended
and Restated Trust Agreement as Exhibit C is an appropriate form of
certificate to evidence ownership of the Preferred Securities. The
Preferred Securities have been duly authorized by the Amended and
Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the
Subscription Agreement, the Preferred Securities will be validly
issued
and (subject to the qualifications set forth in this paragraph) fully
paid
and nonassessable and will represent undivided beneficial interests
in the
assets of the Trust, and the Preferred Security Holders will be entitled
to the benefits of the Amended and Restated Trust Agreement. The
Preferred
Security Holders as beneficial owners of the Trust, will 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. The Preferred Security Holders may
be
obligated to make payments or provide indemnity or security as set
forth
in the Amended and Restated Trust
Agreement.
|
(iv)
|
The
Common Securities have been duly authorized by the Amended and Restated
Trust Agreement and, when issued in accordance with the Amended and
Restated Trust Agreement and delivered against payment therefor in
accordance with the Amended and Restated Trust Agreement and the
Common
Securities Subscription Agreement, will be validly issued and will
represent undivided beneficial interests in the assets of the Trust,
and
the Common Security Holder will be entitled to the benefits of the
Amended
and Restated Trust Agreement.
|
(v)
|
Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the issuance of the Preferred Securities and the Common
Securities is not subject to preemptive or other similar
rights.
|
(vi)
|
Under
the Delaware Statutory Trust Act and the Amended and Restated Trust
Agreement, the execution and delivery by the Trust of the Placement
Agreement, the Subscription Agreement, the Common Securities Subscription
Agreement and the Junior Subordinated Note Subscription Agreement,
and the
performance by the Trust of its obligations thereunder, have been
duly
authorized by all necessary trust action on the part of the
Trust.
|
(vii)
|
The
Amended and Restated Trust Agreement constitutes a legal, valid and
binding obligation of the Company and the Trustees, enforceable against
the Company and the Trustees, in accordance with its
terms.
|
(viii)
|
The
issuance and sale by the Trust of the Preferred Securities and the
Common
Securities, the purchase by the Trust of the Junior Subordinated
Notes,
the execution, delivery and performance by the Trust of the Placement
Agreement, the Subscription Agreement, the Common Securities Subscription
Agreement and the Junior Subordinated Note Subscription Agreement,
the
consummation by the Trust of the transactions contemplated by the
Placement Agreement, the Subscription Agreement, the Common Securities
Subscription Agreement and the Junior Subordinated Note Subscription
Agreement and compliance by the Trust with its obligations thereunder
are
not prohibited by (i) the Certificate of Trust or the Amended and
Restated
Trust Agreement or (ii) any law or regulation of the State of Delaware
applicable to the Trust.
|
(ix)
|
No
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court or Delaware
governmental authority or Delaware agency is required solely in connection
with the issuance and sale by the Trust of the Trust Securities,
the
purchase by the Trust of the Junior Subordinated Notes, the execution,
delivery and performance by the Trust of the Placement Agreement,
the
Subscription Agreement, the Common Securities Subscription Agreement
and
the Junior Subordinated Note Subscription Agreement, the consummation
by
the Trust of the transactions contemplated by the Placement Agreement
and
the Subscription Agreement and compliance by the Trust with its
obligations thereunder.
|
(x)
|
The
Preferred Security Holders (other than those Preferred Security Holders
who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely
as a
result of their participation in the Trust and the Trust will not
be
liable for any income tax imposed by the State of
Delaware.
|
In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and (B) rely as to matters of
fact, to the extent deemed proper, on certificates of responsible officers
of
the Company and the Trust and public officials.
Barnes
& Thornburg LLP shall be entitled to rely on this opinion for purposes of
rendering its opinions pursuant to Sections 3.2(b) and 3.2(c) of the Placement
Agreement.
EXHIBIT
B-5
FORM
OF
TRUSTEE COUNSEL OPINION
Pursuant
to Section 3.2(e) of the Placement Agreement, Morris James LLP, special counsel
for the Property Trustee, the Guarantee Trustee, the Delaware Trustee and the
Indenture Trustee, shall deliver an opinion to the effect that:
the
Indenture Trustee, shall deliver an opinion to the effect that:
(i)
|
Wilmington
Trust Company is duly incorporated and validly existing as a Delaware
banking corporation in good standing under the laws of the State
of
Delaware with trust powers and its principal place of business
in the
State of Delaware.
|
(ii)
|
Wilmington
Trust Company has requisite corporate power and authority to execute
and
deliver, and to perform its obligations under, the Amended and
Restated
Trust Agreement, the Guarantee Agreement and the
Indenture.
|
(iii)
|
The
execution, delivery, and performance by Wilmington Trust Company
of the
Amended and Restated Trust Agreement, the Guarantee Agreement and
the
Indenture have been duly authorized by all necessary corporate
action on
the part of Wilmington Trust Company, and the Amended and Restated
Trust
Agreement, the Guarantee Agreement and the Indenture have been
duly
executed and delivered by Wilmington Trust
Company.
|
(iv)
|
The
Amended and Restated Trust Agreement is a legal, valid and binding
obligation of Wilmington Trust Company, enforceable against Wilmington
Trust Company, in accordance with its terms.
|
(v)
|
No
approval, authorization or other action by, or filing with, any
governmental authority or agency under any law or regulation of
the State
of Delaware or the United States of America governing the trust
powers of
Wilmington Trust Company is required solely in connection with
the
execution, delivery and performance by Wilmington Trust Company
of the
Amended and Restated Trust Agreement, the Guarantee Agreement and
the
Indenture, except for the filing of the Certificate of Trust with
the
Secretary of State, which Certificate of Trust has been duly filed
with
the Secretary of State.
|
(vi)
|
The
execution, delivery and performance of the Amended and Restated
Trust
Agreement, the Guarantee Agreement and the Indenture by Wilmington
Trust
Company are not prohibited by (i) the Charter or Bylaws of Wilmington
Trust Company, (ii) any law or regulation of the State of Delaware
or the
United States of America governing the trust powers of Wilmington
Trust
Company, or (iii) to our knowledge (based and relying solely on
the
Officer Certificates), any agreements or instruments to which Wilmington
Trust Company is a party or by which Wilmington Trust Company is
bound or
any judgment or order applicable to Wilmington Trust Company.
|
(vii)
|
The
Junior Subordinated Notes delivered on the date hereof have been
authenticated by due execution thereof and delivered by Wilmington
Trust
Company, as Indenture Trustee, in accordance with the Company Order.
The
Preferred Securities delivered on the date hereof have been authenticated
by due execution thereof and delivered by Wilmington Trust Company,
as
Property Trustee, in accordance with the Trust
Order.
|
In
rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of the State of Delaware and the federal laws of the
United States governing the trust powers of Wilmington Trust Company and
(B) rely as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of Wilmington Trust Company and public
officials.
Barnes
& Thornburg LLP shall be entitled to rely on this opinion for purposes of
rendering its opinions pursuant to Sections 3.2(b) and 3.2(c) of the Placement
Agreement.
Annex
F
OFFICER’S
CERTIFICATE
The
undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 6.9 of the Placement Agreement,
dated as of December 15, 2006 among Horizon Bancorp (the “Company”), Horizon
Bancorp Capital Trust III (the “Trust”) and J.P. Morgan Securities Inc., that,
as of _______, 20__, the Company had the following ratios and
balances:
BANK
HOLDING COMPANY
As
of
[Quarterly Financial Dates]
Tier
1 Risk Weighted Assets
|
|
|
%
|
Ratio
of Double Leverage
|
|
|
%
|
Non-Performing
Assets to Loans and OREO
|
|
|
%
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
|
|
%
|
Ratio
of Reserves to Non-Performing Loans
|
|
|
%
|
Ratio
of Net Charge-Offs to Loans
|
|
|
%
|
Return
on Average Assets (annualized)
|
|
|
%
|
Net
Interest Margin (annualized)
|
|
|
%
|
Efficiency
Ratio
|
|
|
%
|
Ratio
of Loans to Assets
|
|
|
%
|
Ratio
of Loans to Deposits
|
|
|
%
|
Double
Leverage (exclude trust preferred as equity)
|
|
|
%
|
Total
Assets
|
$
|
|
|
Year
to Date Income
|
$
|
|
|
*
A table
describing the quarterly report calculation procedures is attached.
[FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20__.]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter and [six/nine] month period ended _______, 20___.]
Annex
F
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [___ quarter
interim] [annual] period ended _______, 20__, and such financial statements
have
been prepared in accordance with GAAP consistently applied throughout the period
involved (expect as otherwise noted therein).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of
this _____ day of _____________, 20__
|
|
|
Name:
|
|
Title:
|
|
Horizon
Bancorp
|
|
515
Franklin Square
|
|
Michigan
City, Indiana 46360
|
|
(219)
879-0211
|
FINANCIAL
DEFINITIONS
BANK
HOLDING COMPANY
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Tier
1 Risk Weighted Assets
|
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
Ratio
of Double Leverage
|
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries divided by the total equity capital.
This field is calculated at the parent company level. “Subsidiaries”
include bank, bank holding company, and non-bank
subsidiaries.
|
Non-Performing
Assets to Loans and OREO
|
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital - Goodwill)/(Total Assets - Goodwill)
|
Ratio
of Reserves to Non-Performing Loans
|
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual + Restructured)
|
Ratio
of Net Charge-Offs to Loans
|
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
Return
on Average Assets (annualized)
|
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
Net
Interest Margin (annualized)
|
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
Ratio
of Loans to Assets
|
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
Ratio
of Loans to Deposits
|
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign
Deposits)
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash and balances due from depository
institutions; securities; federal funds sold and securities purchased
under agreements to resell; loans and lease financing receivables;
trading
assets; premises and fixed assets; other real estate owned; investments
in
unconsolidated subsidiaries and associated companies; customer’s liability
on acceptances outstanding; intangible assets; and other
assets.
|
2
Exhibit
4.1
JUNIOR
SUBORDINATED INDENTURE
between
HORIZON
BANCORP
and
WILMINGTON
TRUST COMPANY
,
as
Trustee
_____________________
Dated
as of December 15, 2006
_____________________
|
TABLE
OF CONTENTS
Page
ARTICLE
I
|
Definitions
and Other Provisions of General Application
|
|
|
|
SECTION
1.1.
|
Definitions.
|
1
|
SECTION
1.2.
|
Compliance
Certificate and Opinions.
|
10
|
SECTION
1.3.
|
Forms
of Documents Delivered to Trustee.
|
11
|
SECTION
1.4.
|
Acts
of Holders.
|
12
|
SECTION
1.5.
|
Notices,
Etc.
|
14
|
SECTION
1.6.
|
Notice
to Holders; Waiver.
|
14
|
SECTION
1.7.
|
Effect
of Headings and Table of Contents.
|
15
|
SECTION
1.8.
|
Successors
and Assigns.
|
15
|
SECTION
1.9.
|
Separability
Clause.
|
15
|
SECTION
1.10.
|
Benefits
of Indenture.
|
15
|
SECTION
1.11.
|
Governing
Law.
|
15
|
SECTION
1.12.
|
Submission
to Jurisdiction.
|
15
|
SECTION
1.13.
|
Non-Business
Days.
|
16
|
|
|
|
ARTICLE
II
|
Security
Forms
|
SECTION
2.1.
|
Form
of Security.
|
16
|
SECTION
2.2.
|
Restricted
Legend.
|
16
|
SECTION
2.3.
|
Form
of Trustee’s Certificate of Authentication.
|
16
|
SECTION
2.4.
|
Temporary
Securities.
|
16
|
SECTION
2.5.
|
Definitive
Securities.
|
17
|
|
|
|
ARTICLE
III
|
The
Securities
|
SECTION
3.1.
|
Payment
of Principal and Interest.
|
17
|
SECTION
3.2.
|
Denominations.
|
19
|
SECTION
3.3.
|
Execution,
Authentication, Delivery and Dating.
|
19
|
SECTION
3.4.
|
Global
Securities.
|
20
|
SECTION
3.5.
|
Registration,
Transfer and Exchange Generally.
|
22
|
SECTION
3.6.
|
Mutilated,
Destroyed, Lost and Stolen Securities.
|
23
|
SECTION
3.7.
|
Persons
Deemed Owners.
|
24
|
SECTION
3.8.
|
Cancellation.
|
24
|
SECTION
3.9.
|
Deferrals
of Interest Payment Dates.
|
24
|
SECTION
3.10.
|
Right
of Set-Off.
|
25
|
SECTION
3.11.
|
Agreed
Tax Treatment.
|
25
|
SECTION
3.12.
|
CUSIP
Numbers.
|
26
|
|
|
|
ARTICLE
IV
|
Satisfaction
and Discharge
|
SECTION
4.1.
|
Satisfaction
and Discharge of Indenture.
|
26
|
SECTION
4.2.
|
Application
of Trust Money.
|
27
|
|
|
|
ARTICLE
V
|
Remedies
|
SECTION
5.1.
|
Events
of Default.
|
27
|
SECTION
5.2.
|
Acceleration
of Maturity; Rescission and Annulment.
|
29
|
SECTION
5.3.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee.
|
30
|
SECTION
5.4.
|
Trustee
May File Proofs of Claim.
|
30
|
SECTION
5.5.
|
Trustee
May Enforce Claim Without Possession of Securities.
|
31
|
SECTION
5.6.
|
Application
of Money Collected.
|
31
|
SECTION
5.7.
|
Limitation
on Suits.
|
31
|
SECTION
5.8.
|
Unconditional
Right of Holders to Receive Principal, Premium and Interest; Direct
Action
by Holders of Preferred Securities.
|
32
|
SECTION
5.9.
|
Restoration
of Rights and Remedies.
|
32
|
SECTION
5.10.
|
Rights
and Remedies Cumulative.
|
33
|
SECTION
5.11.
|
Delay
or Omission Not Waiver.
|
33
|
SECTION
5.12.
|
Control
by Holders.
|
33
|
SECTION
5.13.
|
Waiver
of Past Defaults.
|
33
|
SECTION
5.14.
|
Undertaking
for Costs.
|
34
|
SECTION
5.15.
|
Waiver
of Usury, Stay or Extension Laws.
|
34
|
|
|
|
ARTICLE
VI
|
The
Trustee
|
SECTION
6.1.
|
Corporate
Trustee Required.
|
35
|
SECTION
6.2.
|
Certain
Duties and Responsibilities.
|
35
|
SECTION
6.3.
|
Notice
of Defaults.
|
36
|
SECTION
6.4.
|
Certain
Rights of Trustee.
|
36
|
SECTION
6.5.
|
May
Hold Securities.
|
38
|
SECTION
6.6.
|
Compensation;
Reimbursement; Indemnity.
|
38
|
SECTION
6.7.
|
Resignation
and Removal; Appointment of Successor.
|
40
|
SECTION
6.8.
|
Acceptance
of Appointment by Successor.
|
40
|
SECTION
6.9.
|
Merger,
Conversion, Consolidation or Succession to Business.
|
41
|
SECTION
6.10.
|
Not
Responsible for Recitals or Issuance of Securities.
|
41
|
SECTION
6.11.
|
Appointment
of Authenticating Agent.
|
41
|
ARTICLE
VII
|
Holders’
Lists and Reports by Trustee and Company
|
SECTION
7.1.
|
Company
to Furnish Trustee Names and Addresses of Holders.
|
43
|
SECTION
7.2.
|
Preservation
of Information, Communications to Holders.
|
43
|
SECTION
7.3.
|
Reports
by Company and Trustee.
|
44
|
|
|
|
ARTICLE
VIII
|
Consolidation,
Merger, Conveyance, Transfer or Lease
|
SECTION
8.1.
|
Company
May Consolidate, Etc., Only on Certain Terms.
|
44
|
SECTION
8.2.
|
Successor
Company Substituted.
|
45
|
|
|
|
ARTICLE
IX
|
Supplemental
Indentures
|
SECTION
9.1.
|
Supplemental
Indentures without Consent of Holders.
|
46
|
SECTION
9.2.
|
Supplemental
Indentures with Consent of Holders.
|
46
|
SECTION
9.3.
|
Execution
of Supplemental Indentures.
|
47
|
SECTION
9.4.
|
Effect
of Supplemental Indentures.
|
47
|
SECTION
9.5.
|
Reference
in Securities to Supplemental Indentures.
|
47
|
|
|
|
ARTICLE
X
|
Covenants
|
SECTION
10.1.
|
Payment
of Principal, Premium and Interest.
|
48
|
SECTION
10.2.
|
Money
for Security Payments to be Held in Trust.
|
48
|
SECTION
10.3.
|
Statement
as to Compliance.
|
49
|
SECTION
10.4.
|
Calculation
Agent.
|
49
|
SECTION
10.5.
|
Additional
Tax Sums.
|
50
|
SECTION
10.6.
|
Additional
Covenants.
|
51
|
SECTION
10.7.
|
Waiver
of Covenants.
|
52
|
SECTION
10.8.
|
Treatment
of Securities.
|
52
|
|
|
|
ARTICLE
XI
|
Redemption
of Securities
|
SECTION
11.1.
|
Optional
Redemption.
|
52
|
SECTION
11.2.
|
Special
Event Redemption.
|
52
|
SECTION
11.3.
|
Election
to Redeem; Notice to Trustee.
|
53
|
SECTION
11.4.
|
Selection
of Securities to be Redeemed.
|
53
|
SECTION
11.5.
|
Notice
of Redemption.
|
54
|
SECTION
11.6.
|
Deposit
of Redemption Price.
|
54
|
SECTION
11.7.
|
Payment
of Securities Called for Redemption.
|
55
|
ARTICLE
XII
|
Subordination
of Securities
|
SECTION
12.1.
|
Securities
Subordinate to Senior Debt.
|
55
|
SECTION
12.2.
|
No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.
|
55
|
SECTION
12.3.
|
Payment
Permitted If No Default.
|
57
|
SECTION
12.4.
|
Subrogation
to Rights of Holders of Senior Debt.
|
57
|
SECTION
12.5.
|
Provisions
Solely to Define Relative Rights.
|
58
|
SECTION
12.6.
|
Trustee
to Effectuate Subordination.
|
58
|
SECTION
12.7.
|
No
Waiver of Subordination Provisions.
|
58
|
SECTION
12.8.
|
Notice
to Trustee.
|
59
|
SECTION
12.9.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent.
|
59
|
SECTION
12.10.
|
Trustee
Not Fiduciary for Holders of Senior Debt.
|
59
|
SECTION
12.11.
|
Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights
|
60
|
SECTION
12.12.
|
Article
Applicable to Paying Agents.
|
60
|
|
|
|
|
|
|
SCHEDULES
|
Schedule
A
|
Determination
of LIBOR
|
|
Exhibit
A
|
Form
of Junior Subordinated Note
|
|
Exhibit
B
|
Form
of Financial Officer’s Certificate
|
|
Exhibit
C
|
Form
of Officers’ Certificate pursuant to Section 10.3
|
|
JUNIOR
SUBORDINATED INDENTURE
,
dated
as of December 15, 2006, between
HORIZON
BANCORP
,
an
Indiana corporation (the “
Company
”),
and
WILMINGTON
TRUST COMPANY
,
a
Delaware banking corporation, as Trustee (in such capacity, the “
Trustee
”).
RECITALS
OF THE COMPANY
WHEREAS
,
the
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of its unsecured junior subordinated deferrable
interest notes (the “
Securities
”)
issued
to evidence loans made to the Company of the proceeds from the issuance by
Horizon Bancorp Capital Trust III, a Delaware statutory trust (the “
Trust
”),
of
undivided preferred beneficial interests in the assets of the Trust (the
“
Preferred
Securities
”)
and
undivided common beneficial interests in the assets of the Trust (the
“
Common
Securities
”
and,
collectively with the Preferred Securities, the “
Trust
Securities
”),
and
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; and
WHEREAS
,
all
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
Now,
therefore, this Indenture Witnesseth:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
SECTION
1.1.
Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this
Article
I
have the
meanings assigned to them in this
Article
I
;
(b)
the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c)
all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP;
(d)
unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this
Indenture;
(e)
the
words
“hereby”, “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;
(f)
a
reference to the singular includes the plural and vice versa; and
(g)
the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“
Act
”
when
used with respect to any Holder, has the meaning specified in
Section
1.4
.
“
Additional
Interest
”
means
the interest, if any, that shall accrue on any amounts payable on the
Securities, the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum, compounded quarterly,
specified or determined as specified in such Security.
“
Additional
Tax Sums
”
has
the
meaning specified in
Section
10.5
.
“
Additional
Taxes
”
means
taxes, duties or other governmental charges imposed on the Trust as a result
of
a Tax Event (which, for the sake of clarity, does not include amounts required
to be deducted or withheld by the Trust from payments made by the Trust to
or
for the benefit of the Holder of, or any Person that acquires a beneficial
interest in, the Securities).
“
Administrative
Trustee
”
means,
with respect to the Trust, a Person identified as an “Administrative Trustee” in
the Trust Agreement, solely in its capacity as Administrative Trustee of the
Trust under the Trust Agreement and not in its individual capacity, or its
successor in interest in such capacity, or any successor Administrative Trustee
appointed as therein provided.
“
Affiliate
”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control,” when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“
Applicable
Depositary Procedures
”
means,
with respect to any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the Depositary for
such
Security, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“
Authenticating
Agent
”
means
any Person authorized by the Trustee pursuant to
Section
6.11
to act
on behalf of the Trustee to authenticate the Securities.
“
Bankruptcy
Code
”
means
Title 11 of the United States Code or any successor statute thereto, in each
case as amended from time to time.
“
Board
of Directors
”
means
the board of directors of the Company or any duly authorized committee of that
board.
“
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.
“
Business
Day
”
means
any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee is closed for business.
“
Calculation
Agent
”
has
the
meaning specified in
Section
10.4
.
“
Capital
Disqualification Event
”
means
the receipt by the Company of an Opinion of Counsel experienced in such matters
that, as a result of an amendment to or a change in law, rule or regulation
(including any announced prospective change) or a change in interpretation
or
application of law, rule or regulation by any legislative body, court,
governmental agency or regulatory authority, there is more than an insubstantial
risk that within ninety (90) days of the date of such opinion, the aggregate
liquidation amount of the Preferred Securities will not be eligible to be
treated by the Company as “Tier 1 Capital” (or the then equivalent) for purposes
of the capital adequacy guidelines of the Federal Reserve or other “appropriate
Federal banking agency” as such term is defined in 12 U.S.C. 1813(q), which
amendment, change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of issuance of the
Securities;
provided,
however,
that the
inability of the Company to treat all or any portion of the liquidation amount
of the Preferred Securities as Tier 1 Capital shall not constitute the basis
for
a Capital Disqualification Event if such inability results from the Company
having such Preferred Securities outstanding in an amount that for any reason
is
in excess of the amount which may now or hereafter qualify for treatment as
Tier
1 Capital under applicable capital adequacy guidelines. By way of example,
the
inability of the Company to treat all or any portion of the liquidation amount
of the Preferred Securities as Tier 1 Capital as a result of the Final Rule
on
Risk-Based Capital Standards: Trust Preferred Securities and the Definition
of
Capital, adopted on March 1, 2005, by the Federal Reserve, shall not constitute
the basis for a Capital Disqualification Event.
“
Common
Securities
”
has
the
meaning specified in the first recital of this Indenture.
“
Common
Stock
”
means
the common stock, no par value and stated value $0.22 per share, of the
Company.
“
Company
”
means
the Person named as the “
Company
”
in
the
first paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “
Company
”
shall
mean such successor corporation.
“
Company
Request
”
and
“
Company
Order
”
mean,
respectively, the written request or order signed in the name of the Company
by
its Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its Chief Executive Officer, President or a Vice President, and
by
its Chief Financial Officer, Treasurer, an Assistant Treasurer, its Secretary
or
an Assistant Secretary, and delivered to the Trustee.
“
Corporate
Trust Office
”
means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
this
Indenture is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Capital
Markets.
“
Debt
”
means,
with respect to any Person, whether recourse is to all or a portion of the
assets of such Person, whether currently existing or hereafter incurred and
whether or not contingent and without duplication, (i) every obligation of
such
Person for money borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to letters
of
credit, bankers’ acceptances or similar facilities issued for the account of
such Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or other accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends
of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i) through
(vii).
“
Defaulted
Interest
”
has
the
meaning specified in
Section
3.1
.
“
Delaware
Trustee
”
means,
with respect to the Trust, the Person identified as the “Delaware Trustee” in
the Trust Agreement, solely in its capacity as Delaware Trustee of the Trust
under the Trust Agreement and not in its individual capacity, or its successor
in interest in such capacity, or any successor Delaware Trustee appointed as
therein provided.
“
Depositary
”
means
an organization registered as a clearing agency under the Exchange Act that
is
designated as Depositary by the Company or any successor thereto. 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 a Depositary effects book-entry transfers and pledges of securities
deposited with the Depositary.
“
Distributions
”
means
amounts payable in respect of the Trust Securities as provided in the Trust
Agreement and referred to therein as “Distributions.”
“
Dollar
”
or
“$”
means the currency of the United States of America that, as at the time of
payment, is legal tender for the payment of public and private
debts.
“
DTC
”
means
The Depository Trust Company, a New York corporation.
“
Equity
Interests
”
means
any of (a) the partnership interests (general or limited) in a partnership,
(b)
the membership interests in a limited liability company or (c) the shares or
stock interests (both common stock and preferred stock) in a
corporation.
“
Event
of Default
”
has
the
meaning specified in
Section
5.1
.
“
Exchange
Act
”
means
the Securities Exchange Act of 1934 or any statute successor thereto, in each
case as amended from time to time.
“
Expiration
Date
”
has
the
meaning specified in
Section
1.4
.
“
Extension
Period
”
has
the
meaning specified in
Section
3.9
.
“
Federal
Reserve
”
means
the Board of Governors of the Federal Reserve System, the staff thereof, or
a
Federal Reserve Bank, acting through delegated authority, in each case under
the
rules, regulations and policies of the Federal Reserve System, or if at any
time
after the execution of this Indenture any such entity is not existing and
performing the duties now assigned to it , any successor body performing similar
duties or functions.
“
GAAP
”
means
United States generally accepted accounting principles, consistently applied,
from time to time in effect.
“
Global
Security
”
means
a
Security that evidences all or part of the Securities, the ownership and
transfers of which shall be made through book entries by a
Depositary.
“
Government
Obligation
”
means
(a) any security that is (i) a direct obligation of the United States of America
of which the full faith and credit of the United States of America is pledged
or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the
United States of America, which, in either case (i) or (ii), is not callable
or
redeemable at the option of the issuer thereof, and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any Government Obligation that is specified in clause
(a) above and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest
on
any Government Obligation that is so specified and held,
provided
,
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from
any amount received by the custodian in respect of the Government Obligation
or
the specific payment of principal or interest evidenced by such depositary
receipt.
“
Guarantee
Agreement
”
means
the Guarantee Agreement executed by the Company and Wilmington Trust Company,
as
Guarantee Trustee, contemporaneously with the execution and delivery of this
Indenture, for the benefit of the holders of the Preferred Securities, as
modified, amended or supplemented from time to time.
“
Holder
”
means
a
Person in whose name a Security is registered in the Securities
Register.
“
Indenture
”
means
this instrument as originally executed or as it may from time to time be amended
or supplemented by one or more amendments or indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
“
Interest
Payment Date
”
means
January 30
th
,
April
30
th
,
July
30
th
,
October
30
th
of each
year, commencing on January 30, 2007, during the term of this
Indenture.
“
Investment
Company Act
”
means
the Investment Company Act of 1940 or any successor statute thereto, in each
case as amended from time to time.
“
Investment
Company Event
”
means
the receipt by the Company 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 (including any announced prospective change) or a 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 ninety (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 Securities.
“
LIBOR
”
has
the
meaning specified in
Schedule
A
.
“
LIBOR
Business Day
”
has
the
meaning specified in
Schedule
A
.
“
LIBOR
Determination Date
”
has
the
meaning specified in
Schedule
A
.
“
Liquidation
Amount
”
has
the
meaning specified in the Trust Agreement.
“
Maturity
,”
when
used with respect to any Security, means the date on which the principal of
such
Security or any installment of principal becomes due and payable as therein
or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
“Major
Bank Subsidiary,”
means
any subsidiary of the Company that is a “major bank subsidiary” as such term is
used in the Adopting Release accompanying the Final Rule on Risk-Based Capital
Standards: Trust Preferred Securities and the Definition of Capital, adopted
on
March 1, 2005, by the Federal Reserve, and as such term may subsequently be
defined or interpreted in any rule, regulation, written interpretation or other
public issuance of the Federal Reserve. For purposes of this definition, any
“depository institution” subsidiary of the Company within the meaning of Section
3(c) of the Federal Deposit Insurance Act that would be considered a Major
Bank
Subsidiary except for the fact that such subsidiary is not a “bank” within the
meaning of Section 3(a) of the Bank Holding Company Act of 1956, shall be deemed
to be a Major Bank Subsidiary.
“
Notice
of Default
”
means
a
written notice of the kind specified in
Section
5.1(d)
.
“
Officers’
Certificate
”
means
a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, President or a Vice President, and by the Chief
Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company and delivered to the Trustee.
“
Opinion
of Counsel
”
means
a
written opinion of counsel, who may be counsel for or an employee of the Company
or any Affiliate of the Company.
“
Original
Issue Date
”
means
the date of original issuance of each Security.
“
Outstanding
”
means,
when used in reference to any Securities, as of the date of determination,
all
Securities theretofore authenticated and delivered under this Indenture,
except:
(i)
Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii)
Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
,
that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii)
Securities
that have been paid, or in substitution for or in lieu of which other Securities
have been authenticated and delivered pursuant to the provisions of this
Indenture, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
provided
,
that,
in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the
Securities or any Affiliate of the Company or such other obligor.
Notwithstanding anything herein to the contrary, Securities initially issued
to
the Trust that are owned by the Trust shall be deemed to be Outstanding
notwithstanding the ownership by the Company or an Affiliate of any beneficial
interest in the Trust.
“
Paying
Agent
”
means
the Trustee or any Person authorized by the Company to pay the principal of
or
any premium or interest on, or other amounts in respect of, any Securities
on
behalf of the Company.
“
Person
”
means
a
legal person, including any individual, corporation, company, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“
Place
of Payment
”
means,
with respect to the Securities, the Corporate Trust Office of the
Trustee.
“
Placement
Agent
”
has
the
meaning specified in the Trust Agreement.
“
Preferred
Securities
”
has
the
meaning specified in the first recital of this Indenture.
“
Predecessor
Security
”
of
any
particular Security means every previous Security evidencing all or a portion
of
the same debt as that evidenced by such particular Security. For the purposes
of
this definition, any security authenticated and delivered under
Section
3.6
in lieu
of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.
“
Proceeding
”
has
the
meaning specified in
Section
12.2
.
“
Property
Trustee
”
means
the Person identified as the “Property Trustee” in the Trust Agreement, solely
in its capacity as Property Trustee of the Trust under the Trust Agreement
and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Property Trustee appointed as therein provided.
“
Purchaser
”
means
TWE, Ltd., as purchaser of the Preferred Securities pursuant to the Subscription
Agreement.
“
Redemption
Date
”
means,
when used with respect to any Security to be redeemed, the date fixed for such
redemption by or pursuant to this Indenture.
“
Redemption
Price
”
means,
when used with respect to any Security to be redeemed, in whole or in part,
the
price at which such Security or portion thereof is to be redeemed as fixed
by or
pursuant to this Indenture.
“
Reference
Banks
”
has
the
meaning specified in
Schedule
A
.
“
Regular
Record Date
”
for
the
interest payable on any Interest Payment Date with respect to the Securities
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).
“
Responsible
Officer
”
means,
with respect to the Trustee, any Senior Vice President, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Financial Services Officer or Assistant Financial
Services Officer, or any other officer in the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture
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.
“
Rights
Plan
”
means
a
plan of the Company providing for the issuance by the Company to all holders
of
its Equity Interests of rights entitling the holders thereof to subscribe for
or
purchase Equity Interests of the Company which rights (i) are deemed to be
transferred with such Equity Interests and (ii) are also issued in respect
of
future issuances of such Equity Interests, in each case until the occurrence
of
a specified event or events.
“
Securities
”
or
“
Security
”
means
any debt securities or debt security, as the case may be, authenticated and
delivered under this Indenture.
“
Securities
Act
”
means
the Securities Act of 1933 or any successor statute thereto, in each case as
amended from time to time.
“
Securities
Register
”
and
“
Securities
Registrar
”
have
the respective meanings specified in
Section
3.5
.
“
Senior
Debt
”
means
the principal of and any premium and interest on (including interest accruing
on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Company, whether or not such claim for post-petition interest is allowed
in such proceeding) all Debt of the Company, whether incurred on or prior to
the
date of this Indenture or thereafter incurred, unless 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 in right of payment to
the
Securities;
provided,
however,
that if
the Company is subject to the regulation and supervision of an "appropriate
Federal banking agency" within the meaning of 12 U.S.C. 1813(q), the Company
shall have received the approval of such appropriate Federal banking agency
prior to issuing any such obligation if not otherwise generally approved or
authorized;
provided
further,
that
Senior Debt shall not include any other debt securities, and guarantees in
respect of such debt securities, issued to any trust other than the Trust (or
a
trustee of such trust), partnership or other entity affiliated with the Company
that is a financing vehicle of the Company (a “financing entity”), in connection
with the issuance by such financing entity of equity securities or other
securities that are treated as equity capital for regulatory capital purposes
guaranteed by the Company pursuant to an instrument that ranks pari passu with
or junior in right of payment to the Securities, including, without limitation,
the debt securities of the Company issued under (i) the Indenture, dated March
26, 2002, between the Company and State Street Bank and Trust Company of
Connecticut, N.A., as trustee, (ii) the Indenture, dated June 17, 2004, between
the Company and Wilmington Trust Company, as trustee, and (iii) the Indenture,
dated October 21, 2004, between the Company and Wilmington Trust Company, as
trustee.
“
Special
Event
”
means
the occurrence of a Capital Disqualification Event, an Investment Company Event
or a Tax Event.
“
Special
Event Redemption Price
”
has
the
meaning specified in
Section
11.2
.
“
Special
Record Date
”
for
the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant
to
Section
3.1
.
“
Stated
Maturity
”
means
January 30, 2037.
“
Subscription
Agreement
”
means
the Preferred Securities Subscription Agreement, dated as of December 15, 2006,
by and among the Company, the Trust, the Purchaser and J.P. Morgan Securities
Inc. (as to certain provisions thereof).
“
Subsidiary
”
means
a
Person more than fifty percent (50%) of the outstanding voting stock or other
voting interests of which is owned, directly or indirectly, by the Company
or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For
purposes
of this definition, “voting stock” means stock that ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
“
Tax
Event
”
means
the receipt by the Company of an Opinion of Counsel experienced in such matters
to the effect that, as a result of (a) any amendment to or change (including
any
announced prospective change) in the laws or any regulations thereunder of
the
United States or any political subdivision or taxing authority thereof or
therein or (b) any judicial decision or any official administrative
pronouncement (including any private letter ruling, technical advice memorandum
or field service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or procedure (an
“Administrative Action”), regardless of whether such judicial decision or
Administrative Action 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, change, judicial decision or Administrative Action is enacted,
promulgated or announced, in each case, on or after the date of issuance of
the
Securities, there is more than an insubstantial risk that (i) the Trust is,
or
will be within ninety (90) days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Securities, (ii) interest payable by the Company on the Securities is not,
or
within ninety (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 ninety (90) days of the date of such
opinion, subject to more than a
de
minimis
amount
of other taxes, duties or other governmental charges.
“
Trust
”
has
the
meaning specified in the first recital of this Indenture.
“
Trust
Agreement
”
means
the Amended and Restated Trust Agreement executed and delivered by the Company,
the Property Trustee, the Delaware Trustee and the Administrative Trustees
named
therein, contemporaneously with the execution and delivery of this Indenture,
for the benefit of the holders of the Trust Securities, as amended or
supplemented from time to time.
“
Trustee
”
means
the Person named as the “
Trustee
”
in
the
first paragraph of this instrument, solely in its capacity as such and not
in
its individual capacity, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and, thereafter,
“
Trustee
”
shall
mean or include each Person who is then a Trustee hereunder.
“
Trust
Indenture Act
”
means
the Trust Indenture Act of 1939, as amended and as in effect on the date as
of
this Indenture.
“
Trust
Securities
”
has
the
meaning specified in the first recital of this Indenture.
SECTION
1.2.
Compliance
Certificate and Opinions.
(a)
Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent (including covenants
compliance with which constitutes a condition 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 (including covenants compliance
with
which constitutes a condition precedent), if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b)
Every
certificate delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificate provided
pursuant to
Section
10.3
)
shall
include:
(i)
a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;
(ii)
a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions of such individual contained in such
certificate or opinion are based;
(iii)
a
statement that, in the opinion of such individual, 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
(iv)
a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
SECTION
1.3.
Forms
of Documents Delivered to Trustee.
(a)
In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b)
Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should
know,
that the certificate or opinion or representations with respect to matters
upon
which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c)
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d)
Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall
be
discovered therein, a new document or instrument may be substituted therefor
in
corrected form with the same force and effect as if originally received in
the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities.
SECTION
1.4.
Acts
of Holders.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed
in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to
as the “
Act
”
of
the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section
1.4
.
(b)
The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such execution is by
a
Person acting in other than his or her individual capacity, such certificate
or
affidavit shall also constitute sufficient proof of his or her authority. The
fact and date of the execution by any Person of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine.
(c)
The
ownership of Securities shall be proved by the Securities Register.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the
same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
(e)
Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Security may do so with regard to all or any part
of
the principal
amount
of
such Security or by one or more duly appointed agents each of which may do
so
pursuant to such appointment with regard to all or any part of such principal
amount.
(f)
Except
as
set forth in paragraph (g) of this
Section
1.4
,
the
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
of
Securities. If any record date is set pursuant to this paragraph, the Holders
of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date;
provided
,
that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in
this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant
to
this paragraph (whereupon the record date previously set shall automatically
and
with no action by any Person be canceled and of no effect). Promptly after
any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and
the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in
Section
1.6
.
(g)
The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making
of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission
or
annulment thereof referred to in
Section
5.2
,
(iii)
any request to institute proceedings referred to in
Section
5.7(b)
or (iv)
any direction referred to in
Section
5.12
.
If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to
join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date;
provided
,
that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall
be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect). Promptly after any record date
is
set pursuant to this paragraph, the Trustee, at the Company’s expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in
Section
1.6
.
(h)
With
respect to any record date set pursuant to paragraph (f) or (g) of this
Section
1.4
,
the
party hereto that sets such record date may designate any day as the
“
Expiration
Date
”
and
from time to time may change the Expiration Date to any earlier or later day;
provided
,
that no
such change shall be effective unless notice of the proposed new Expiration
Date
is given to the other party hereto in writing, and to each Holder of Securities
in the manner set forth in
Section
1.6
,
on or
prior to the existing Expiration Date. If an Expiration Date is not designated
with respect to any record date set pursuant to this
Section
1.4
,
the
party hereto that set such record date shall be deemed to have initially
designated the ninetieth (90
th
)
day
after such record date as the Expiration Date with respect thereto, subject
to
its right to change the Expiration Date
as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the one hundred and eightieth (180
th
)
day
after the applicable record date.
SECTION
1.5.
Notices,
Etc.
Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a)
the
Trustee by any Holder, any holder of Preferred Securities or the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in
writing to or with the Trustee at its Corporate Trust Office,
(b)
the
Company by the Trustee, any Holder or any holder of Preferred Securities shall
be sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at 515 Franklin Square, Michigan
City, Indiana 46360, Attn: Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company,
(c)
the
Placement Agent by the Trustee, the Company, any Holder or any holder or
beneficial owner of the Preferred Securities, shall be sufficient for every
purpose hereunder if in writing and mailed, first-class postage prepaid to
the
Placement Agent at 270 Park Avenue, New York, New York 10017, Attention: The
CDO
Group
,
or any
other address previously furnished by the Placement Agent, or
(d)
the
Purchaser by the Trustee, the Company, any Holder or any holder or beneficial
owner of the Preferred Securities, shall be sufficient for every purpose
hereunder if in writing and mailed first-class postage prepaid to the Purchaser
at c/o Maples Finance Limited, P.O. Box 1093 GT, Queensgate House, South Church
Street, George Town, Grand Cayman, Cayman Islands, Attention: The Directors,
or
any other address previously furnished by the Purchaser.
SECTION
1.6.
Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. If, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture,
then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice. In any case where notice
to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the
Person entitled to receive such notice, either before or after the event, and
such waiver shall
be
the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the
Trustee, but such filing shall not be a condition precedent to the validity
of
any action taken in reliance upon such waiver.
SECTION
1.7.
Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
SECTION
1.8.
Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of law.
Except in connection with a transaction involving the Company that is permitted
under
Article
VIII
and
pursuant to which the assignee agrees in writing to perform the Company’s
obligations hereunder, the Company shall not assign its obligations
hereunder.
SECTION
1.9.
Separability
Clause.
If
any
provision in this Indenture or in the Securities shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION
1.10.
Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities and, to the extent
expressly provided in
Sections
5.2
,
5.8
,
5.9
,
5.11
,
5.13
,
9.2
and
10.7
,
the
holders of Preferred Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION
1.11.
Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company
and
the Trustee shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
SECTION
1.12.
Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION
1.13.
Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such Security shall not be made on such date,
but
shall be made on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be
made on the immediately preceding Business Day, in each case with the same
force
and effect as if made on the Interest Payment Date or Redemption Date or at
the
Stated Maturity.
ARTICLE
II
Security
Forms
SECTION
2.1.
Form
of Security.
Any
Security issued hereunder shall be in substantially the form attached hereto
as
Exhibit
A
.
SECTION
2.2.
Restricted
Legend.
(a)
Any
Security issued hereunder shall bear a legend in substantially the form attached
hereto as
Exhibit
A
.
(b)
Such
legend shall not be removed from any Security unless there is delivered to
the
Company satisfactory evidence, which may include an Opinion of Counsel, as
may
be reasonably required to ensure that any future transfers thereof may be made
without restriction under or violation of the provisions of the Securities
Act
and other applicable law. Upon provision of such satisfactory evidence, the
Company shall execute and deliver to the Trustee, and the Trustee shall deliver,
at the written direction of the Company, a Security that does not bear the
legend.
SECTION
2.3.
Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificates of authentication shall be in substantially the form
contained in
Exhibit
A
attached
hereto.
SECTION
2.4.
Temporary
Securities.
(a)
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are
printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Securities in lieu
of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may
determine, as evidenced by their execution of such Securities.
(b)
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of any authorized denominations
having the same Original Issue Date and Stated Maturity and having the same
terms as such temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture
as
definitive Securities.
SECTION
2.5.
Definitive
Securities.
The
Securities issued on the Original Issue Date shall be in definitive form. The
definitive Securities shall be printed, lithographed or engraved, or produced
by
any combination of these methods, if required by any securities exchange on
which the Securities may be listed, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined
by
the officers executing such Securities, as evidenced by their execution of
such
Securities.
ARTICLE
III
The
Securities
SECTION
3.1.
Payment
of Principal and Interest.
(a)
The
unpaid principal amount of the Securities shall bear interest at a variable
rate
per annum, reset quarterly, equal to LIBOR plus 1.65% until paid or duly
provided for, such interest to accrue from the Original Issue Date or from
the
most recent Interest Payment Date to which interest has been paid or duly
provided for, and any overdue principal, premium or Additional Tax Sums and
any
overdue installment of interest shall bear Additional Interest (to the extent
payment of such interest would be legally enforceable) at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.65% compounded quarterly, from
the
dates such amounts are due until they are paid or funds for the payment thereof
are made available for payment.
(b)
Interest
and Additional Interest on any Security that is payable, and is punctually
paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person
to
whom principal is
paid.
The
initial payment of interest on any Security that is issued between a Regular
Record Date and the related Interest Payment Date shall be payable as provided
in such Security.
(c)
Any
interest on any Security that is due and payable, but is not timely paid or
duly
provided for, on any Interest Payment Date for Securities (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
may be paid by the Company, at its election in each case, as provided in
paragraph (i) or (ii) below:
(i)
The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the 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 (a “
Special
Record Date
”),
which
shall be fixed in the following manner. At least thirty (30) days prior to
the
date of the proposed payment, the Company shall notify the Trustee in writing
of
the amount of Defaulted Interest proposed to be paid on each 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
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. Thereupon the Trustee shall fix
a
Special Record Date for the payment of such Defaulted Interest, which shall
be
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (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 Holder of a Security at the address of such
Holder as it appears in the Securities Register not less than ten (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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date; or
(ii)
The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities may be listed, traded or quoted and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d)
Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. The amount of interest payable for any
interest period shall be computed and paid on the basis of a 360-day year and
the actual number of days elapsed in the relevant interest period.
(e)
Payment
of principal of, premium, if any, and interest on the Securities shall be made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of such Securities
shall be made at the Place of Payment upon surrender of such Securities to
the
Paying Agent and payments of interest shall be made subject to such surrender
where applicable, by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to
the
Paying Agent at least ten (10) Business Days prior to the date for payment
by
the Person entitled thereto unless proper written transfer instructions have
not
been received by the relevant record date, in which case such payments shall
be
made by check mailed to the address of such Person as such address shall appear
in the Security Register. Notwithstanding the foregoing, so long as the holder
of the Security is the Property Trustee, the payment of the principal of (and
premium if any) and interest (including any overdue installment of interest
and
Additional Tax Sums, if any) on the Security will be made at such place and
to
such account as may be designated by the Property Trustee.
(f)
Subject
to the foregoing provisions of this
Section
3.1
,
each
Security delivered under this Indenture upon transfer of or in exchange for
or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
SECTION
3.2.
Denominations.
The
Securities shall be in registered form without coupons and shall be issuable
in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.
SECTION
3.3.
Execution,
Authentication, Delivery and Dating.
(a)
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities in an aggregate principal amount (including
all then Outstanding Securities) not in excess of $12,372,000 executed by the
Company to the Trustee for authentication, together with a Company Order for
the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(i)
a
copy of
any Board Resolution relating thereto; and
(ii)
an
Opinion of Counsel stating that (1) such Securities, when authenticated and
delivered by the Trustee and issued by the Company 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 bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles; (2) the Securities have been duly authorized and executed by the
Company and have been delivered to the Trustee for
authentication
in accordance with this Indenture; and (3) the Securities are not required
to be
registered under the Securities Act
.
(b)
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Securities may be manual or facsimile. Securities bearing the manual
or
facsimile signatures of individuals who were at any time the proper officers
of
the Company shall bind the Company, notwithstanding that such individuals or
any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
(c)
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by
the
Trustee by the manual signature of one of its authorized officers, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as
provided in
Section
3.8
,
for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(d)
Each
Security shall be dated the date of its authentication.
SECTION
3.4.
Global
Securities.
(a)
Upon
the
election of the Holder after the Original Issue Date, which election need not
be
in writing, the Securities owned by such Holder shall be issued in the form
of
one or more Global Securities registered in the name of the Depositary or its
nominee. Each Global Security issued under this Indenture shall be registered
in
the name of the Depositary designated by the Company for such Global Security
or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b)
Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged
in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than
the
Depositary for such Global Security 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 Security, 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, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing. Upon the occurrence
of
any event specified in clause (i), (ii), (iii) or (iv) above, the Trustee shall
notify the Depositary and instruct the
Depositary
to notify all owners of beneficial interests in such Global Security of the
occurrence of such event and of the availability of Securities to such owners
of
beneficial interests requesting the same. Upon the issuance of such Securities
and the registration in the Securities Register of such Securities in the names
of the Holders of the beneficial interests therein, the Trustees shall recognize
such holders of beneficial interests as Holders.
(c)
If
any
Global Security is to be exchanged for other Securities or canceled in part,
or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall
be
so surrendered for exchange or cancellation as provided in this
Article
III
or (ii)
the principal amount thereof shall be reduced or increased by an amount equal
to
the portion thereof to be so exchanged or canceled, or equal to the principal
amount of such other 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 Securities 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 Security by the Depositary,
accompanied by registration instructions, the Company shall execute and the
Trustee shall authenticate and deliver any Securities issuable in exchange
for
such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay
in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d)
Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e)
Securities
distributed to holders of Book-Entry Preferred Securities (as defined in the
Trust Agreement) upon the dissolution of the Trust shall be distributed in
the
form of one or more Global Securities registered in the name of a Depositary
or
its nominee, and deposited with the Securities Registrar, as custodian for
such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). Securities distributed
to
holders of Preferred Securities other than Book-Entry Preferred Securities
upon
the dissolution of the Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(f)
The
Depositary or its nominee, as the registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under this Indenture
and
the Securities, and owners of beneficial interests in a Global Security shall
hold such interests pursuant to the Applicable Depositary Procedures.
Accordingly, any such owner’s beneficial interest in a Global Security 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 Securities Registrar and the Trustee shall be entitled to
deal
with the Depositary for all purposes of this Indenture relating to a Global
Security (including the payment of principal and interest thereon and the giving
of instructions or directions by owners of beneficial interests therein and
the
giving of notices) as the sole Holder of the Security and shall have no
obligations to the
owners
of
beneficial interests therein. Neither the Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the
Depositary.
(g)
The
rights of owners of beneficial interests in a Global Security 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
holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. 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 of a Global Security 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 a Depositary
or
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security.
SECTION
3.5.
Registration,
Transfer and Exchange Generally.
(a)
The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“
Securities
Register
”)
in
which the registrar and transfer agent with respect to the Securities (the
“
Securities
Registrar
”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Securities and of transfers and exchanges of Securities.
The
Trustee shall at all times also be the Securities Registrar. The provisions
of
Article
VI
shall
apply to the Trustee in its role as Securities Registrar.
(b)
Subject
to compliance with
Section
2.2(b)
,
upon
surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations of like tenor and aggregate principal amount.
(c)
At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute,
and
upon receipt thereof the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
(d)
All
Securities issued upon any transfer or exchange of Securities shall be the
valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
(e)
Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing.
(f)
No
service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
(g)
Neither
the Company nor the Trustee shall be required pursuant to the provisions of
this
Section
3.5
(i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of Securities pursuant to
Article
XI
and
ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(h)
The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration or transfer or exchange. The
Company initially designates the Corporate Trust Office as its office and agency
for such purposes. The Company shall give prompt written notice to the Trustee
and to the Holders of any change in the location of any such office or
agency.
SECTION
3.6.
Mutilated,
Destroyed, Lost and Stolen Securities.
(a)
If
any
mutilated Security is surrendered to the Trustee together with such security
or
indemnity as may be required by the Company or the Trustee to save each of
them
harmless, the Company shall execute and upon receipt thereof the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor
and
aggregate principal amount and bearing a number not contemporaneously
outstanding.
(b)
If
there
shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a
bona
fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and aggregate principal amount as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously
outstanding.
(c)
If
any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay such Security.
(d)
Upon
the
issuance of any new Security under this
Section
3.6
,
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 (including the fees and
expenses of the Trustee) connected therewith.
(e)
Every
new
Security issued pursuant to this
Section
3.6
in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued
hereunder.
(f)
The
provisions of this
Section
3.6
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION
3.7.
Persons
Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION
3.8.
Cancellation.
All
Securities surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee
for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any
Securities canceled as provided in this
Section
3.8
,
except
as expressly permitted by this Indenture. All canceled Securities shall be
disposed of by the Trustee in accordance with its customary practices and the
Trustee shall deliver to the Company a certificate of such
disposition.
SECTION
3.9.
Deferrals
of Interest Payment Dates.
(a)
So
long
as no Event of Default pursuant to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
has
occurred and is continuing, the Company shall have the right, at any time and
from time to time during the term of the Security, to defer the payment of
interest on the Securities for a period of up to twenty (20) consecutive
quarterly interest payment periods (each such period, an “
Extension
Period
”),
during which Extension Period(s), the Company shall have the right to make
no
payments or partial payments of interest on any Interest Payment Date (except
any Additional Tax Sums that otherwise may be due and payable). No Extension
Period shall end on a date other than an Interest Payment Date and no Extension
Period shall extend beyond the Stated Maturity of the principal of the
Securities. No 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
payment of such interest would be legally enforceable) at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.65%, compounded quarterly, from
the dates on which amounts would have otherwise been due and payable until
paid
or until funds for the payment thereof have been made available for payment.
At
the end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid on the Securities together with such Additional Interest.
Prior to the termination of any such Extension Period, the Company may extend
such Extension Period and further defer the payment of interest;
provided
,
that
(i) all such previous and further extensions comprising such Extension Period
do
not exceed twenty (20) quarterly interest payment periods, (ii) no Extension
Period shall end on a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the principal of
the
Securities. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then
due
on any Interest Payment Date, the Company may elect to begin a new Extension
Period;
provided
,
that
(i) such Extension Period does not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest
Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity
of the principal of the Securities and (iv) no Event of Default pursuant to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
has
occurred and is continuing. The Company shall give (i) the Holders of the
Securities, (ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial
owner of the Preferred Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by the Placement
Agent or the Purchaser) written notice of its election to begin any such
Extension Period no later than the close of business on the fifteenth (15th)
Business Day prior to the next succeeding Interest Payment Date on which
interest on the Securities would be payable but for such deferral.
(b)
In
connection with any such Extension Period, the Company shall be subject to
the
restrictions set forth in
Section
10.6(a)
.
SECTION
3.10.
Right
of Set-Off.
Notwithstanding
anything to the contrary herein, the Company shall have the right to set off
any
payment it is otherwise required to make in respect of any Security to the
extent the Company has theretofore made, or is concurrently on the date of
such
payment making, a payment under the Guarantee Agreement relating to such
Security or to a holder of Preferred Securities pursuant to an action undertaken
under
Section
5.8
of this
Indenture.
SECTION
3.11.
Agreed
Tax Treatment.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for United States Federal, state and local tax purposes and to treat the
Preferred Securities (including but not limited to all payments and proceeds
with respect to the Preferred Securities) as an undivided beneficial ownership
interest in the Trust (and payments and proceeds therefrom, respectively) for
United States Federal, state and local tax purposes. The provisions of this
Indenture shall be interpreted to further this intention and agreement of the
parties.
SECTION
3.12.
CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
and other similar or related materials as a convenience to Holders;
provided
,
that
any such notice or other materials may state that no representation is made
as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other materials and that reliance
may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission
of
such numbers.
ARTICLE
IV
Satisfaction
and Discharge
SECTION
4.1.
Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this
Section
4.1
)
and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(a)
either
(i)
all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in
Section
3.6
and (B)
Securities for whose payment money has theretofore been deposited in trust
or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in
Section
10.2
)
have
been delivered to the Trustee for cancellation; or
(ii)
all
such
Securities not theretofore delivered to the Trustee for
cancellation
|
(A)
|
have
become due and payable, or
|
|
(B)
|
will
become due and payable at their Stated Maturity within one year of
the
date of deposit, or
|
|
(C)
|
are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the
Trustee in the name, and at the expense, of the
Company,
|
and
the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or
caused to be deposited with the Trustee as trust funds in trust for such purpose
(x) an amount in the currency or currencies in which the Securities are payable,
(y) Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount or (z) a combination
thereof, in each case sufficient, in the
opinion
of a nationally recognized firm of independent public accountants expressed
in a
written certification thereof delivered to the Trustee, to pay and discharge
the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest (including any
Additional Interest) to the date of such deposit (in the case of Securities
that
have become due and payable) or to the Stated Maturity (or any date of principal
repayment upon early maturity) or Redemption Date, as the case may
be;
(b)
the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c)
the
Company has delivered to the Trustee 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.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under
Section
6.6
,
the
obligations of the Company to any Authenticating Agent under
Section
6.11
and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this
Section
4.1
,
the
obligations of the Trustee under
Section
4.2
and
Section
10.2(e)
shall
survive.
SECTION
4.2.
Application
of Trust Money.
Subject
to the provisions of
Section
10.2(e)
,
all
money deposited with the Trustee pursuant to
Section
4.1
shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
the Securities and this Indenture, to the payment in accordance with
Section
3.1
,
either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of
the principal and any premium and interest (including any Additional Interest)
for the payment of which such money or obligations have been deposited with
or
received by the Trustee. Moneys held by the Trustee under this
Section
4.2
shall
not be subject to the claims of holders of Senior Debt under
Article
XII
.
ARTICLE
V
Remedies
SECTION
5.1.
Events
of Default.
“
Event
of Default
”
means,
wherever used herein with respect to the Securities, 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)
default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of
such default for
a
period
of thirty (30) days (subject to the deferral of any due date in the case of
an
Extension Period); or
(b)
default
in the payment of the principal of or any premium on any Security at its
Maturity; or
(c)
default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, following the nonpayment of any such interest
for
twenty (20) or more consecutive quarterly interest payment periods;
or
(d)
default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture and continuance of such default or breach for a period of thirty
(30) 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 twenty five percent (25%) in aggregate principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring
it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(e)
the
entry
by a court having jurisdiction in the premises of a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding
up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of sixty (60) consecutive days; or
(f)
the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Company of a petition
or
answer or consent seeking reorganization or relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors,
or
the admission by it in writing of its inability to pay its debts generally
as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action; or
(g)
either
(1) a court or administrative or governmental agency or body shall enter a
decree or order for the appointment of a receiver of a Major Bank Subsidiary
or
all or substantially all of its property in any liquidation, insolvency or
similar proceeding, or (2) a Major Bank 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; or
(h)
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 Securities to holders of the Preferred Securities in
liquidation of their interests in the Trust,
(2)
the
redemption of all of the outstanding Preferred Securities or (3) certain
mergers, consolidations or amalgamations, each as and to the extent permitted
by
the Trust Agreement.
SECTION
5.2.
Acceleration
of Maturity; Rescission and Annulment.
(a)
If
an
Event of Default pursuant to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
occurs
and is continuing, then and in every such case the Trustee or the Holders of
not
less than twenty five percent (25%) in principal amount of the Outstanding
Securities may declare the principal amount of all the Securities to be due
and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided, that if, upon an Event of Default pursuant
to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
,
the
Trustee or the Holders of not less than twenty five percent (25%) in principal
amount of the Outstanding Securities fail to declare the principal of all the
Outstanding Securities to be immediately due and payable, the holders of at
least twenty five percent (25%) in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall have the right to make such declaration by
a
notice in writing to the Property Trustee, the Company and the Trustee; and
upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Securities shall become immediately due
and
payable.
(b)
At
any
time after such a declaration of acceleration with respect to Securities has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Trustee as hereinafter provided in this
Article
V
,
the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Indenture Trustee, or the holders of a majority in
aggregate Liquidation Amount of the Preferred Securities, by written notice
to
the Property Trustee, the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(i)
the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
|
(A)
|
all
overdue installments of interest on all
Securities,
|
|
(B)
|
any
accrued Additional Interest on all
Securities,
|
|
(C)
|
the
principal of and any premium on any Securities that have become due
otherwise than by such declaration of acceleration and interest (including
any Additional Interest) thereon at the rate borne by the Securities,
and
|
|
(D)
|
all
sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee,
the
Property Trustee and their agents and counsel;
and
|
(ii)
all
Events of Default with respect to Securities, other than the non-payment of
the
principal of Securities that has become due solely by such acceleration, have
been cured or waived as provided in
Section
5.13
;
provided
,
that if
the Holders of such Securities fail to annul such declaration and waive such
default, the holders of not less than a majority in aggregate Liquidation Amount
of the Preferred Securities then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to
the
Property Trustee, the Company and the Trustee, subject to the satisfaction
of
the conditions set forth in paragraph (b) of this
Section
5.2
.
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
SECTION
5.3.
Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a)
The
Company covenants that if:
(i)
default
is made in the payment of any installment of interest (including any Additional
Interest) on any Security when such interest becomes due and payable and such
default continues for a period of thirty (30) days, or
(ii)
default
is made in the payment of the principal of and any premium on any Security
at
the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit
of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest (including any Additional
Interest) and, in addition thereto, all amounts owing the Trustee under
Section
6.6
.
(b)
If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
(c)
If
an
Event of Default with respect to Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and
the
rights of the Holders of Securities by such appropriate judicial proceedings
as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION
5.4.
Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due
it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under
Section
6.6
.
SECTION
5.5.
Trustee
May Enforce Claim Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
as
trustee of an express trust, and any recovery of judgment shall, subject to
Article
XII
and
after provision for the payment of all the amounts owing the Trustee, any
predecessor Trustee and other Persons under
Section
6.6
,
be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION
5.6.
Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this
Article
V
shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal
or
any premium or interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if only partially
paid
and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under
Section
6.6
;
SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by
Article
XII
.
THIRD:
Subject to
Article
XII
,
to the
payment of the amounts then due and unpaid upon the Securities for principal
and
any premium and interest (including any Additional Interest) in respect of
which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on
the Securities for principal and any premium and interest (including any
Additional Interest), respectively; and
FOURTH:
The balance, if any, to the Person or Persons entitled thereto.
SECTION
5.7.
Limitation
on Suits.
Subject
to
Section
5.8
,
no
Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment
of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a)
such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;
(b)
the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c)
such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d)
the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and
(e)
no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing itself of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Securities, or to obtain or to seek to obtain priority or preference over
any
other of such Holders or to enforce any right under this Indenture, except
in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION
5.8.
Unconditional
Right of Holders to Receive Principal, Premium and Interest; Direct Action
by
Holders of Preferred Securities.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium on such Security at its Maturity and payment of interest
(including any Additional Interest) on such Security when due and payable and
to
institute suit for the enforcement of any such payment, and such right shall
not
be impaired without the consent of such Holder. Any registered holder of the
Preferred Securities shall have the right, upon the occurrence of an Event
of
Default described in
Section
5.1(a)
,
Section
5.1(b)
or
Section
5.1(c)
,
to
institute a suit directly against the Company for enforcement of payment to
such
holder of principal of and any premium and interest (including any Additional
Interest) on the Securities having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities held by such holder.
SECTION
5.9.
Restoration
of Rights and Remedies.
If
the
Trustee, any Holder or any holder of Preferred Securities has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee, such Holder or such holder of Preferred
Securities, then and in every such case the Company, the Trustee, such Holders
and such holder of Preferred Securities 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 Trustee,
such
Holder and such holder of Preferred Securities shall continue as though no
such
proceeding had been instituted.
SECTION
5.10
.
Rights
and Remedies Cumulative.
Except
as
otherwise provided in
Section
3.6(f)
,
no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to
every other right and remedy given hereunder or now or hereafter existing at
law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION
5.11.
Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee, any Holder of any Securities or any holder of any
Preferred Security to exercise any right or remedy accruing upon any Event
of
Default shall impair any such right or remedy or constitute a waiver of any
such
Event of Default or an acquiescence therein. Every right and remedy given by
this
Article
V
or by
law to the Trustee or to the Holders and the right and remedy given to the
holders of Preferred Securities by
Section
5.8
may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case may
be.
SECTION
5.12.
Control
by Holders.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities (or, as the case may be, the holders of a majority
in
aggregate Liquidation Amount of the Preferred Securities) 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; provided that:
(a)
such
direction shall not be in conflict with any rule of law or with this
Indenture,
(b)
the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and
(c)
subject
to the provisions of
Section
6.2
,
the
Trustee shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith, reasonably
determine that the proceeding so directed would be unjustly prejudicial to
the
Holders not joining in any such direction or would involve the Trustee in
personal liability.
SECTION
5.13.
Waiver
of Past Defaults.
(a)
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities and the holders of not less than a majority in aggregate
Liquidation Amount of the Preferred Securities may waive any past Event of
Default hereunder and its consequences except an Event of Default:
(i)
in
the
payment of the principal of or any premium or interest (including any Additional
Interest) on any Security (unless such Event of Default has been cured and
the
Company has paid to or deposited with the Trustee a sum sufficient to pay
all
installments
of interest (including any Additional Interest) due and past due and all
principal of and any premium on all Securities due otherwise than by
acceleration), or
(ii)
in
respect of a covenant or provision hereof that under
Article
IX
cannot
be modified or amended without the consent of each Holder of any Outstanding
Security.
(b)
Any
such
waiver shall be deemed to be on behalf of the Holders of all the Securities
or,
in the case of a waiver by holders of Preferred Securities issued by such Trust,
by all holders of Preferred Securities.
(c)
Upon
any
such waiver, such Event of Default shall cease to exist and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event
of
Default or impair any right consequent thereon.
SECTION
5.14.
Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his or
her
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
5.14
shall
not apply to any suit instituted by the Trustee, to any suit instituted by
any
Holder, or group of Holders, holding in the aggregate more than ten percent
(10%) in aggregate principal amount of the Outstanding Securities, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or any premium on the Security after the Stated Maturity or any
interest (including any Additional Interest) on any Security after it is due
and
payable.
SECTION
5.15.
Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
ARTICLE
VI
The
Trustee
SECTION
6.1.
Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the Securities. The
Trustee shall be a corporation organized and doing business under the laws
of
the United States or of any state thereof, authorized to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or state authority and having
an office within the United States. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of this
Section
6.1
,
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 the Trustee shall cease to be eligible in
accordance with the provisions of this
Section
6.1
,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this
Article
VI
.
SECTION
6.2.
Certain
Duties and Responsibilities.
(a)
Except
during the continuance of an Event of Default:
(i)
the
Trustee undertakes to perform such duties and only such duties 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 its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture;
provided
,
that in
the case of any such certificates or opinions that 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 substantially
conform on their face to the requirements of this Indenture.
(b)
If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders
of
at least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of a majority in aggregate Liquidation
Amount of the Preferred Securities), exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
its
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of such person’s own affairs.
(c)
Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee 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 against such risk or liability
is
not reasonably assured to it. Whether or not therein expressly so
provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this
Section
6.2
.
To the
extent that, at law or in equity, the Trustee has duties and liabilities
relating to the Holders, the Trustee shall not be liable to any Holder for
the
Trustee’s good faith reliance on the provisions of this Indenture. The
provisions of this Indenture, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in equity, are agreed
by
the Company and the Holders to replace such other duties and liabilities of
the
Trustee.
(d)
No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act
or
willful misconduct, except that:
(i)
the
Trustee shall not be liable for any error or judgment made in good faith by
an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii)
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 Holders of
at
least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of a majority in aggregate Liquidation
Amount of the Preferred Securities), relating to the time, method and place
of
conducting any proceeding for any remedy available to the Trustee under this
Indenture; and
(iii)
the
Trustee shall be under no liability for interest on any money received by it
hereunder and money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION
6.3.
Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived;
provided
,
that
except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected
in
withholding the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the
Trustee in good faith determines that withholding the notice is in the interest
of holders of Securities; and
provided
,
further
,
that in
the case of any default of the character specified in
Section
5.1(d)
,
no such
notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For the purpose of this
Section
6.3
,
the
term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION
6.4.
Certain
Rights of Trustee.
Subject
to the provisions of
Section
6.2
:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b)
if
(i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application
of
any provision of this Indenture, then, except as to any matter as to which
the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company’s written
instruction as to the course of action to be taken and the Trustee shall take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided
,
that if
the Trustee does not receive such instructions from the Company within ten
Business Days after it has delivered such notice or such reasonably shorter
period of time set forth in such notice the Trustee may, but shall be under
no
duty to, take such action, or refrain from taking such action, as the Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Trustee shall have no liability except for its own negligence, bad faith
or
willful misconduct;
(c)
any
request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(d)
the
Trustee may consult with counsel (which counsel may be counsel to the
Trustee
,
the
Company or any of its Affiliates, and may include any of its employees) and
the
advice of such counsel or any 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 reliance thereon;
(e)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders
or any holder of Preferred Securities pursuant to this Indenture, unless
such
Holders (or such holders of Preferred Securities) shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the
Trustee;
(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, direction, consent, order, bond,
indenture, note or other paper or document, but the Trustee in its discretion
may make such inquiry or investigation into such facts or matters as it may
see
fit, and, if the Trustee shall determine to make such inquiry or investigation,
it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(h)
whenever
in the administration of this Indenture the Trustee shall deem it desirable
to
receive instructions with respect to enforcing any remedy or right or taking
any
other action with respect to enforcing any remedy or right hereunder, the
Trustees (i) may request instructions from the Holders (which instructions
may
only be given by the Holders of the same aggregate principal amount of
Outstanding Securities as would be entitled to direct the Trustee under this
Indenture in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such instructions
are
received and (iii) shall be protected in acting in accordance with such
instructions;
(i)
except
as
otherwise expressly provided by this Indenture, the Trustee shall not be under
any obligation to take any action that is discretionary under the provisions
of
this Indenture;
(j)
without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy, insolvency or other proceeding referred to in clauses (e) or (f)
of
the definition of Event of Default, such expenses (including legal fees and
expenses of its agents and counsel) and the compensation for such services
are
intended to constitute expenses of administration under any bankruptcy laws
or
law relating to creditors rights generally;
(k)
whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company;
(l)
the
Trustee shall not be charged with knowledge of any default or Event of Default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge or (ii) the Trustee shall have received written notice thereof from
the Company or a Holder; and
(m)
in
the
event that the Trustee is also acting as Paying Agent, Authenticating Agent
or
Securities Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this
Article
VI
shall
also be afforded such Paying Agent, Authenticating Agent, or Securities
Registrar.
SECTION
6.5.
May
Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar
or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
SECTION
6.6.
Compensation;
Reimbursement; Indemnity.
(a)
The
Company agrees
(i)
to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder in such amounts as the Company and the Trustee 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);
(ii)
to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (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, bad faith
or
willful misconduct; and
(iii)
to
the
fullest extent permitted by applicable law, to indemnify the Trustee (including
in its individual capacity) and its Affiliates, and their officers, directors,
shareholders, agents, representatives and employees for, and to hold them
harmless against, any loss, damage, liability, tax (other than income, franchise
or other taxes imposed on amounts paid pursuant to (i) or (ii) hereof), penalty,
expense or claim of any kind or nature whatsoever incurred without negligence,
bad faith or willful misconduct on its part arising out of or in connection
with
the acceptance or administration of this trust or the performance of the
Trustee’s duties hereunder, including the advancement of funds to cover the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(b)
To
secure
the Company’s payment obligations in this
Section
6.
6
,
the
Company hereby grants and pledges to the Trustee and the Trustee shall have
a
lien prior to the Securities on all money or property held or collected by
the
Trustee, other than money or property held in trust to pay principal and
interest on particular Securities. Such lien shall survive the satisfaction
and
discharge of this Indenture or the resignation or removal of the
Trustee.
(c)
The
obligations of the Company under this
Section
6.6
shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d)
In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
(e)
In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
SECTION
6.7.
Resignation
and Removal; Appointment of Successor
.
(a)
No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this
Article
VI
shall
become effective until the acceptance of appointment by the successor Trustee
under
Section
6.8
.
(b)
The
Trustee may resign at any time by giving written notice thereof to the
Company.
(c)
Unless
an
Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event of Default
shall have occurred and be continuing, the Trustee may be removed by Act of
the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d)
If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when no Event
of
Default shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of
Section
6.8
.
If the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when an Event
of
Default shall have occurred and be continuing, the Holders, by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of
Section
6.8
.
If no
successor Trustee shall have been so appointed by the Company or the Holders
and
accepted appointment within sixty (60) days after the giving of a notice of
resignation by the Trustee or the removal of the Trustee in the manner required
by
Section
6.8
,
any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of such Holder and all others similarly situated, and any
resigning Trustee may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e)
The
Company shall give notice to all Holders in the manner provided in
Section
1.6
of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION
6.8.
Acceptance
of Appointment by Successor.
(a)
In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, 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, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the
retiring Trustee and shall duly assign,
transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b)
Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a)
of
this
Section
6.8
.
(c)
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VI
.
SECTION
6.9.
Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the 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 Trustee shall be a party, or any Person 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 Person shall be otherwise qualified and eligible under this
Article
VI
.
In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation or as
otherwise provided above in this
Section
6.9
to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated, and in case any Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name
of any predecessor Trustee or in the name of such successor Trustee, and in
all
cases the certificate of authentication shall have the full force which it
is
provided anywhere in the Securities or in this Indenture that the certificate
of
the Trustee shall have.
SECTION
6.10.
Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee
nor
any Authenticating Agent shall be accountable for the use or application by
the
Company of the Securities or the proceeds thereof.
SECTION
6.11.
Appointment
of Authenticating Agent.
(a)
The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section
3.6
,
and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall
at
all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State or Territory thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or to
the
requirements of said supervising or examining authority, then for the purposes
of this
Section
6.11
the
combined capital and surplus of such Authenticating Agent 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
6.11
,
such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this
Section
6.11
.
(b)
Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such Person shall be otherwise eligible under this
Section
6.11
,
without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
(c)
An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
Section
6.11
,
the
Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this
Section
6.11
,
which
shall be acceptable to the Company, and shall give notice of such appointment
to
all Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
(d)
The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this
Section
6.11
in such
amounts as the Company and the Authenticating Agent shall agree from time to
time.
(e)
If
an
appointment of an Authenticating Agent is made pursuant to this
Section
6.11
,
the
Securities may have endorsed thereon
,
in
addition to the Trustee’s certificate of authentication,
an
alternative certificate of authentication in the following form:
This
represents Securities designated therein and referred to in the within mentioned
Indenture.
Dated:
|
WILMINGTON
TRUST COMPANY
,
not in its individual capacity, but solely as Trustee
|
|
|
|
|
|
|
|
|
Authenticating
Agent
|
|
|
|
|
|
By:
|
|
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Authorized
Officer
|
ARTICLE
VII
Holders’
Lists and Reports by Trustee and Company
SECTION
7.1.
Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a)
semi-annually,
on or before June 30 and December 31 of each year, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the Holders as
of
a date not more than fifteen (15) days prior to the delivery thereof,
and
(b)
at
such
other times as the Trustee may request in writing, within thirty (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 fifteen (15) days prior to the time such
list
is furnished, in each case to the extent such information is in the possession
or control of the Company and has not otherwise been received by the Trustee
in
its capacity as Securities Registrar.
SECTION
7.2.
Preservation
of Information, Communications to Holders.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in
Section
7.1
and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in
Section
7.1
upon
receipt of a new list so furnished.
(b)
The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c)
Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information
as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.
SECTION
7.3
.
Reports
by Company and Trustee
.
(a)
The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act. The Company shall furnish
to the Trustee and, so long as the Property Trustee holds any of the Securities,
the Company shall furnish to the Property Trustee, (i) reports on Federal
Reserve form FR Y-9C, FR Y-9LP and FR Y-6 promptly following their filing with
the Federal Reserve, or (ii) if at such time the Company is no longer required
to file the reports set forth in (i) above, such other similar reports as the
Company may be required to file at such time with the Company’s primary federal
banking regulator promptly following their filing with such banking
regulator.
(b)
The
Company shall furnish to (i) the Holders and to subsequent holders of
Securities, (ii) the Purchaser, (iii) any beneficial owner of the Securities
reasonably identified to the Company (which identification may be made either
by
such beneficial owner or by the Placement Agent or the Purchaser) and (iv)
any
designee of (i), (ii) or (iii) above, a duly completed and executed certificate
in the form attached hereto as
Exhibit
B
,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Company not later than
forty five (45) days after the end of each of the first three fiscal quarters
of
each fiscal year of the Company and not later than ninety (90) days after the
end of each fiscal year of the Company.
(c)
The
Trustee shall receive all reports, certificates and information, which it is
entitled to receive under each of the Operative Documents (as defined in the
Trust Agreement), and deliver to (i) the Purchaser, (ii) the Placement Agent
and
(iii) a designee of (i) or (ii) above, as identified in writing to the Trustee,
all such reports, certificates or information promptly upon receipt
thereof.
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION
8.1.
Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a)
if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium
and
interest (including any Additional Interest) on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be
performed or observed;
(b)
immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c)
the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental indenture comply with this
Article
VIII
and that
all conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers’ Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this
Section
8.1
.
SECTION
8.2.
Successor
Company Substituted.
(a)
Upon
any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with
Section
8.1
and the
execution and delivery to the Trustee of the supplemental indenture described
in
Section
8.1(a)
,
the
successor entity formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed
to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance or
transfer, following the execution and delivery of such supplemental indenture,
the Company shall be discharged from all obligations and covenants under the
Indenture and the Securities.
(b)
Such
successor Person may cause to be executed, and may issue either in its own
name
or in the name of the Company, any or all of the Securities issuable hereunder
that theretofore shall not have been signed by the Company and delivered to
the
Trustee; and, upon the order of such successor Person instead of the Company
and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its
behalf. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture.
(c)
In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Securities thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.1.
Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a)
to
evidence the succession of another Person to the Company, and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(b)
to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture,
provided
,
that
such action pursuant to this clause (b) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities; or
(c)
to
add to
the covenants, restrictions or obligations of the Company or to add to the
Events of Default,
provided
,
that
such action pursuant to this clause (c) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities; or
(d)
to
modify, eliminate or add to any provisions of the Indenture or the Securities
to
such extent as shall be necessary to ensure that the Securities are treated
as
indebtedness of the Company for United States Federal income tax purposes,
provided
,
that
such action pursuant to this clause (d) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities.
SECTION
9.2.
Supplemental
Indentures with Consent of Holders.
(a)
With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may 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 modifying in any manner the rights
of
the Holders of Securities under this Indenture;
provided
,
that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security,
(i)
change
the Stated Maturity of the principal or any premium of any Security or change
the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the rate
of
interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Security
or
interest thereon is payable, or restrict or impair the right to institute suit
for the enforcement of any such payment on or after such date, or
(ii)
reduce
the percentage in aggregate principal amount of the Outstanding Securities,
the
consent of whose Holders is required for any such supplemental indenture, or
the
consent of whose Holders is required for any waiver of compliance with any
provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture, or
(iii)
modify
any of the provisions of this
Section
9.2
,
Section
5.13
or
Section
10.7
,
except
to increase any percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any reason, or to
provide that certain other provisions of this Indenture cannot be modified
or
waived without the consent of the Holder of each Security;
provided,
further,
that, so
long as any Preferred Securities remain outstanding, no amendment under this
Section
9.2
shall be
effective until the holders of a majority in Liquidation Amount of the Trust
Securities shall have consented to such amendment;
provided,
further,
that if
the consent of the Holder of each Outstanding Security is required for any
amendment under this Indenture, such amendment shall not be effective until
the
holder of each Outstanding Trust Security shall have consented to such
amendment.
(b)
It
shall
not be necessary for any Act of Holders under this
Section
9.2
to
approve the particular form of any proposed supplemental indenture, but it
shall
be sufficient if such Act shall approve the substance thereof.
SECTION
9.3.
Execution
of Supplemental Indentures.
In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this
Article
IX
or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall
be entitled to receive, and shall be fully protected in conclusively relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee’s own
rights, duties, indemnities or immunities under this Indenture or otherwise.
Copies of the final form of each supplemental indenture shall be delivered
by
the Trustee at the expense of the Company to each Holder, and, if the Trustee
is
the Property Trustee, to each holder of Preferred Securities, promptly after
the
execution thereof.
SECTION
9.4.
Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this
Article
IX
,
this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION
9.5.
Reference
in Securities to Supplemental Indentures.
approved
by the Company as to any matter provided for in such supplemental indenture.
If
the Company shall so determine, new Securities so modified as to conform, in
the
opinion of the Company, to any such supplemental indenture may be prepared
and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE
X
Covenants
SECTION
10.1.
Payment
of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION
10.2.
Money
for Security Payments to be Held in Trust.
(a)
If
the
Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the principal of and any
premium or interest (including any Additional Interest) on the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto
a
sum sufficient to pay the principal and any premium or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee in writing of its failure so to act.
(b)
Whenever
the Company shall have one or more Paying Agents, it will, prior to 10:00 a.m.,
New York City time, on each due date of the principal of or any premium or
interest (including any Additional Interest) on any Securities, deposit with
a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure so to
act.
(c)
The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section
10.2
,
that
such Paying Agent will (i) comply with the provisions of this Indenture and
the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon
the
written request of the Trustee, forthwith pay to the Trustee all sums held
in
trust by such Paying Agent for payment in respect of the
Securities.
(d)
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(e)
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company
in
trust for the payment of the principal of and any premium or interest (including
any Additional Interest) on any Security and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat
or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter,
as
an unsecured general creditor, look only to the Company for payment thereof,
and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease;
provided
,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will
be
repaid to the Company.
SECTION
10.3.
Statement
as to Compliance.
The
Company shall deliver to the Trustee, within one hundred and twenty (120)
days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate (substantially in the form attached hereto as
Exhibit
C
)
covering the preceding fiscal year, stating whether or not to the knowledge
of
the signers thereof the Company is in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture (without
regard
to any period of grace or requirement of notice provided hereunder), and
if the
Company shall be in default, specifying all such defaults and the nature
and
status thereof of which they may have knowledge.
SECTION
10.4.
Calculation
Agent.
(a)
The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR
in
respect of each Interest Payment Date in accordance with the terms of
Schedule
A
(the
“
Calculation
Agent
”).
The
Company has initially appointed the Property Trustee as Calculation Agent for
purposes of determining LIBOR for each Interest Payment Date. The Calculation
Agent may be removed by the Company at any time. Except as described in the
immediately preceding sentence, so long as the Property Trustee holds any of
the
Securities, the Calculation Agent shall be the Property Trustee. If the
Calculation Agent is unable or unwilling to act as such or is removed by
the
Company,
the Company will promptly appoint as a replacement Calculation Agent the London
office of a leading bank which is engaged in transactions in Eurodollar deposits
in the international Eurodollar market and which does not control or is not
controlled by or under common control with the Company or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been
duly
appointed.
(b)
The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in
Schedule
A
),
but in
no event later than 11:00 a.m. (London time) on the Business Day immediately
following each LIBOR Determination Date, the Calculation Agent will calculate
the interest rate and dollar amount (rounded to the nearest cent, with half
a
cent being rounded upwards) for the related Interest Payment Date, and will
communicate such rate and amount to the Company, the Trustee, each Paying Agent
and the Depositary. The Calculation Agent will also specify to the Company
the
quotations upon which the foregoing rates and amounts are based and, in any
event, the Calculation Agent shall notify the Company before 5:00 p.m. (London
time) on each LIBOR Determination Date that either: (i) it has determined or
is
in the process of determining the foregoing rates and amounts or (ii) it has
not
determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation Agent’s
determination of the foregoing rates and amounts for any Interest Payment Date
will (in the absence of manifest error) be final and binding upon all parties.
For the sole purpose of calculating the interest rate for the Securities,
“Business Day” shall be defined as any day on which dealings in deposits in
Dollars are transacted in the London interbank market.
SECTION
10.5.
Additional
Tax Sums.
If
(a)
the Trust is the Holder of all of the Outstanding Securities and (b) a Tax
Event
described in clause (i) or (iii) in the definition of Tax Event in
Section
1.1
hereof
has occurred and is continuing, the Company shall pay to the Trust (and its
permitted successors or assigns under the related Trust Agreement) for so long
as the Trust (or its permitted successor or assignee) is the registered holder
of the Outstanding Securities, such amounts as may be necessary in order that
the amount of Distributions (including any Additional Interest Amount (as
defined in the Trust Agreement)) then due and payable by the Trust on the
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (additional such amounts payable
by
the Company to the Trust, the “
Additional
Tax Sums
”).
Whenever in this Indenture or the Securities there is a reference in any context
to the payment of principal of or interest on the Securities, such mention
shall
be deemed to include mention of the payments of the Additional Tax Sums provided
for in this
Section
10.5
to the
extent that, in such context, Additional Tax Sums are, were or would be payable
in respect thereof pursuant to the provisions of this
Section
10.5
and
express mention of the payment of Additional Tax Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Tax Sums in
those provisions hereof where such express mention is not made;
provided
,
that
the deferral of the payment of interest pursuant to
Section
3.9
on the
Securities shall not defer the payment of any Additional Tax Sums that may
be
due and payable.
SECTION
10.6.
Additional
Covenants.
(a)
The
Company covenants and agrees with each Holder of Securities that if an Event
of
Default shall have occurred and be continuing or the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities and shall not have rescinded such notice, or such Extension Period,
or any extension thereof, shall be continuing, it 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 Company’s Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium 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 Securities (other than (A)
repurchases, redemptions or other acquisitions of Equity Interests of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase or similar plan with respect to any Equity
Interests or in connection with the issuance of Equity Interests of the Company
(or securities convertible into or exercisable for such Equity Interests) as
consideration in an acquisition transaction entered into prior to the applicable
Event of Default or Extension Period, (B) as a result of an exchange or
conversion of any class or series of the Company’s Equity Interests (or any
Equity Interests of a Subsidiary of the Company) for any class or series of
the
Company’s Equity Interests or of any class or series of the Company’s
indebtedness for any class or series of the Company’s Equity Interests, (C) the
purchase of fractional interests in Equity Interests of the Company pursuant
to
the conversion or exchange provisions of such Equity Interests or the security
being converted or exchanged, (D) any declaration of a dividend in connection
with any Rights Plan, the issuance of rights, Equity Interests or other property
under any Rights Plan or the redemption or repurchase of rights pursuant
thereto, or (E) any dividend in the form of Equity Interests, warrants, options
or other rights where the dividend Equity Interests or the Equity Interests
issuable upon exercise of such warrants, options or other rights are the same
Equity Interests as those on which the dividend is being paid or rank
pari
passu
with
or
junior to such Equity Interests).
(b)
The
Company also covenants with each Holder of Securities (i) to hold, directly
or
indirectly, one hundred percent (100%) of the Common Securities of the Trust,
provided
,
that
any permitted successor of the Company hereunder may succeed to the Company’s
ownership of such Common Securities, (ii) as holder of such Common Securities,
not to voluntarily dissolve, wind-up or liquidate the Trust other than (A)
in
connection with a distribution of the Securities to the holders of the Preferred
Securities in liquidation of the Trust or (B) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iii) to use its reasonable commercial efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Trust to continue to be taxable
as a grantor trust and not as a corporation for United States Federal income
tax
purposes.
SECTION
10.7
.
Waiver
of Covenants
.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in
Section
10.6
if,
before or after the time for such compliance, the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, and at least a majority of the aggregate Liquidation Amount of
the
Preferred Securities then outstanding, by consent of such holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such
waiver shall become effective, the obligations of the Company in respect of
any
such covenant or condition shall remain in full force and effect.
SECTION
10.8.
Treatment
of Securities.
The
Company will treat the Securities as indebtedness, and the amounts (other than
payments of principal) payable in respect of the principal amount of such
Securities as interest, for all U.S. federal income tax purposes. All payments
in respect of the Securities will be made free and clear of U.S. withholding
tax
to any beneficial owner thereof that has provided an Internal Revenue Service
Form W-9 or W-8BEN (or any substitute or successor form) establishing its U.S.
or non-U.S. status for U.S. federal income tax purposes.
ARTICLE
XI
Redemption
of Securities
SECTION
11.1.
Optional
Redemption.
The
Company may, at its option, on any Interest Payment Date, on or after January
30, 2012, redeem the Securities in whole at any time or in part from time to
time, at a Redemption Price equal to one hundred percent (100%) of the principal
amount thereof (or of the redeemed portion thereof, as applicable), together,
in
the case of any such redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption;
provided
,
that
the Company shall have received the prior approval of the Federal Reserve with
respect to such redemption if then required.
SECTION
11.2.
Special
Event Redemption.
Upon
the
occurrence and during the continuation of a Special Event, the Company may,
at
its option, redeem the Securities, in whole but not in part,
at
a
redemption price
equal
to
one hundred three and one half (103.50%) percent of the principal amount
thereof, if the redemption occurs prior to January 30, 2008, and thereafter
at a
redemption price equal to the percentage of the principal amount of the
Securities that is specified below, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption (the “Special Event Redemption
Price”):
Special
Event Redemption During
the
12-Month Period Beginning January 30,
|
Percentage
of Principal Amount
|
2008
|
102.80%
|
2009
|
102.10%
|
2010
|
101.40%
|
2011
|
100.70%
|
2012
and thereafter
|
100.00%
|
|
|
;
provided
,
that
the Company shall have received the prior approval of the Federal Reserve with
respect to such redemption if then required.
SECTION
11.3.
Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities, in whole or in part, shall
be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the
election of the Company, the Company shall, not less than thirty (30) days
and
not more than sixty (60) days prior to the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee and the
Property Trustee under the Trust Agreement in writing of such date and of the
principal amount of the Securities to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by
Section
11.5
.
In the
case of any redemption of Securities, in whole or in part, (a) prior to the
expiration of any restriction on such redemption provided in this Indenture
or
the Securities or (b) pursuant to an election of the Company which is subject
to
a condition specified in this Indenture or the Securities, the Company shall
furnish the Trustee with an Officers’ Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
SECTION
11.4.
Selection
of Securities to be Redeemed.
(a)
If
less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected and redeemed on a pro rata basis not more than sixty
(60) days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption,
provided
,
that
the unredeemed portion of the principal amount of any Security shall be in
an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
(b)
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security that has been or is to be redeemed.
(c)
The
provisions of paragraphs (a) and (b) of this
Section
11.4
shall
not apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the case of
any
such redemption in part, the unredeemed portion
of
the
principal amount of the Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such
Security.
SECTION
11.5.
Notice
of Redemption.
(a)
Notice
of
redemption shall be given not later than the thirtieth (30th) day, and not
earlier than the sixtieth (60th) day, prior to the Redemption Date to each
Holder of Securities to be redeemed, in whole or in part (unless a shorter
notice shall be satisfactory to the Property Trustee under the related Trust
Agreement).
(b)
With
respect to Securities to be redeemed, in whole or in part, each notice of
redemption shall state:
(i)
the
Redemption Date;
(ii)
the
Redemption Price or, if the Redemption Price cannot be calculated prior to
the
time the notice is required to be sent, the estimate of the Redemption Price,
as
calculated by the Company, together with a statement that it is an estimate
and
that the actual Redemption Price will be calculated on the fifth Business Day
prior to the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);
(iii)
if
less
than all Outstanding Securities are to be redeemed, the identification (and,
in
the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(iv)
that
on
the Redemption Date, the Redemption Price will become due and payable upon
each
such Security or portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as the case may be,
shall
cease to accrue on and after said date; and
(v)
the
place
or places where such Securities are to be surrendered for payment of the
Redemption Price.
(c)
Notice
of
redemption of Securities to be redeemed, in whole or in part, at the election
of
the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice if mailed in the manner provided above shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In
any
case, a failure to give such notice by mail or any defect in the notice to
the
Holder of any Security designated for redemption as a whole or in part shall
not
affect the validity of the proceedings for the redemption of any other
Security.
SECTION
11.6.
Deposit
of Redemption Price.
Prior
to
10:00 a.m., New York City time, on the Redemption Date specified in the notice
of redemption given as provided in
Section
11.5
,
the
Company will deposit with the Trustee or with one or more Paying Agents (or
if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in
Section
10.2
)
an
amount of money
sufficient
to pay the Redemption Price of, and any accrued interest (including any
Additional Interest) on, all the Securities (or portions thereof) that are
to be
redeemed on that date.
SECTION
11.7.
Payment
of Securities Called for Redemption.
(a)
If
any
notice of redemption has been given as provided in
Section
11.5
,
the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment specified
in
such notice, the Securities or the specified portions thereof shall be paid
and
redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption
Date.
(b)
Upon
presentation of any Security redeemed in part only, the Company shall execute
and upon receipt thereof the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities,
of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
(c)
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal of and any premium on such Security shall, until
paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
ARTICLE
XII
Subordination
of Securities
SECTION
12.1.
Securities
Subordinate to Senior Debt.
The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this
Article
XII
,
the
payment of the principal of and any premium and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly
made
subordinate and subject in right of payment to the prior payment in full of
all
Senior Debt.
SECTION
12.2.
No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution,
Etc.
(a)
In
the
event and during the continuation of any default by the Company in the payment
of any principal of or any premium or interest on any Senior Debt (following
any
grace period, if applicable) when the same becomes due and payable, whether
at
maturity or at a date fixed for prepayment or by declaration of acceleration
or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Debt or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of or any premium
or interest (including any Additional
Interest)
on any of the Securities, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Securities.
(b)
In
the
event of a bankruptcy, insolvency or other proceeding described in clause (e)
or
(f) of the definition of Event of Default (each such event, if any, herein
sometimes referred to as a “
Proceeding
”),
all
Senior Debt (including any interest thereon accruing after the commencement
of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made
to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt
at
the time outstanding and to any securities issued in respect thereof under
any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt
in
accordance with the priorities then existing among such holders until all Senior
Debt (including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
(c)
In
the
event of any Proceeding, after payment in full of all sums owing with respect
to
Senior Debt, the Holders of the Securities, together with the holders of any
obligations of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at
the
time due and owing on account of unpaid principal of and premium, if any, and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any Equity Interests or any
obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or distribution
of
any character or any security, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for by a
plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt
at
the time outstanding and to any securities issued in respect thereof under
any
such plan of reorganization or readjustment) shall be received by the Trustee
or
any Holder in contravention of any of the terms hereof and before all Senior
Debt shall have been paid in full, such payment or distribution or security
shall be received in trust for the benefit of, and shall be paid over or
delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all such Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) in full. In the event of
the
failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Debt is hereby irrevocably
authorized to endorse or assign the same.
(d)
The
Trustee and the Holders, at the expense of the Company, shall take such
reasonable action (including the delivery of this Indenture to an agent for
any
holders of Senior Debt or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by the holders
of a
majority in principal amount of the Senior Debt at the
time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
(e)
The
provisions of this
Section
12.2
shall
not impair any rights, interests, remedies or powers of any secured creditor
of
the Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
(f)
The
securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
12.3.
Payment
Permitted If No Default.
Nothing
contained in this
Article
XII
or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described
in
paragraph (a) of
Section
12.2
or of
any Proceeding referred to in
Section 12.2
,
from
making payments at any time of principal of and any premium or interest
(including any Additional Interest) on the Securities or (b) the application
by
the Trustee of any moneys deposited with it hereunder to the payment of or
on
account of the principal of and any premium or interest (including any
Additional Interest) on the Securities or the retention of such payment by
the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge (in accordance with
Section
12.8
)
that
such payment would have been prohibited by the provisions of this
Article
XII
,
except
as provided in
Section
12.8
.
SECTION
12.4.
Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all amounts due or to become due on all Senior Debt,
or the provision for such payment in cash or cash equivalents or otherwise
in a
manner satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to
the
holders of such Senior Debt pursuant to the provisions of this
Article
XII
(equally
and ratably with the holders of all indebtedness of the Company that by its
express terms is subordinated to Senior Debt of the Company to substantially
the
same extent as the Securities are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property
and
securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be
paid
in full. For purposes of such subrogation, no payments or distributions to
the
holders of the Senior Debt of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this
Article
XII
,
and no
payments made pursuant to the provisions of this
Article
XII
to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION
12.5
.
Provisions
Solely to Define Relative Rights
.
The
provisions of this
Article
XII
are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Debt on
the
other hand. Nothing contained in this
Article
XII
or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to
the
Holders of the Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and when the same
shall
become due and payable in accordance with their terms, (b) affect the relative
rights against the Company of the Holders of the Securities and creditors of
the
Company other than their rights in relation to the holders of Senior Debt or
(c)
prevent the Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Preferred Security) from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, including filing and voting claims in any Proceeding, subject to
the
rights, if any, under this
Article
XII
of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION
12.6.
Trustee
to Effectuate Subordination.
Each
Holder of a Security by his or her acceptance thereof 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 provided in this
Article
XII
and
appoints the Trustee his or her attorney-in-fact for any and all such
purposes.
SECTION
12.7.
No
Waiver of Subordination Provisions.
(a)
No
right
of any present or future holder of any Senior Debt 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 be otherwise charged
with.
(b)
Without
in any way limiting the generality of paragraph (a) of this
Section
12.7
,
the
holders of Senior Debt may, at any time and from to time, without the consent
of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to such Holders of the Securities and without impairing or
releasing the subordination provided in this
Article
XII
or the
obligations hereunder of such Holders of the Securities to the holders of Senior
Debt, 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, Senior Debt,
or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding,
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt, (iii) release any Person liable
in
any manner for the payment of Senior Debt and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION
12.8.
Notice
to
Trustee.
(a)
The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this
Article
XII
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 to or by the Trustee in respect of the Securities, unless and until
a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor;
provided
,
that if
the Trustee shall not have received the notice provided for in this
Section
12.8
at least
two Business Days prior to the date upon which by the terms hereof any monies
may become payable for any purpose (including, the payment of the principal
of
and any premium on or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding,
the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose 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.
(b)
The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor). 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 Senior Debt to participate in any payment
or
distribution pursuant to this
Article
XII
,
the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt 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
XII
,
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
12.9.
Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon
any
payment or distribution of assets of the Company referred to in this
Article
XII
,
the
Trustee and the Holders of the Securities shall be entitled to conclusively
rely
upon any order or decree entered by any court of competent jurisdiction in
which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders
of
the Senior Debt 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
XII
.
SECTION
12.10.
Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee, in its capacity as trustee under this Indenture, shall not owe or
be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be
liable to any such holders if
it
shall
in good faith mistakenly pay over or distribute to Holders of Securities or
to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this
Article
XII
or
otherwise.
SECTION
12.11.
Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this
Article
XII
with
respect to any Senior Debt that may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. With respect to the
holders of Senior Debt of the Company, the Trustee undertakes to perform only
such of its obligations as are specifically set forth in this Article XII,
and
no implied covenants or obligations with respect to the holders of such Senior
Debt shall be read into this Indenture against the Trustee. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to
Section
6.6
.
SECTION
12.12.
Article
Applicable to Paying Agents.
If
at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “
Trustee
”
as
used
in this
Article
XII
shall in
such case (unless the context otherwise requires) be construed as extending
to
and including such Paying Agent within its meaning as fully for all intents
and
purposes as if such Paying Agent were named in this
Article
XII
in
addition to or in place of the Trustee;
provided
,
that
Sections
12.8
and
12.11
shall
not apply to the Company or any Affiliate of the Company if the Company or
such
Affiliate acts as Paying Agent.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. Delivery of an executed
signature page of this Indenture by facsimile transmission shall be effective
as
delivery of a manually executed counterpart hereof.
*
* *
*
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
|
HORIZON
BANCORP
|
|
|
|
By:
|
/s/
Craig M. Dwight
|
|
|
Craig
M. Dwight
|
|
|
President
and Chief Executive Officer
|
|
|
|
|
|
WILMINGTON
TRUST COMPANY
,
|
|
not in its individual capacity, but solely as
Trustee
|
|
|
|
By:
|
/s/
W. T. Morris, II
|
|
|
Name:
W. Thomas Morris, II
|
|
|
Title:
Assistant Vice President
|
Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Securities, the London interbank offered rate (“
LIBOR
”)
shall
be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1)
On
the
second LIBOR Business Day (as defined below) prior to an Interest Payment Date
(except, with respect to the first interest payment period, on December 13,
2006) (each such day, a “
LIBOR
Determination Date
”),
LIBOR
for any given security shall, for the following interest payment period, equal
the rate, as obtained by the Calculation Agent from Bloomberg Financial Markets
Commodities News, for three-month U.S. Dollar deposits in Europe, which appears
on Dow Jones Telerate Page 3750 (as defined in the International Swaps and
Derivatives Association, Inc. 1991 Interest Rate and Currency Exchange
Definitions), or such other page as may replace such Page 3750, as of 11:00
a.m.
(London time) on such LIBOR Determination Date.
(2)
If,
on
any LIBOR Determination Date, such rate does not appear on Dow Jones Telerate
Page 3750 or such other page as may replace such 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 the LIBOR Determination Date made
by
the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that leading
banks in the City of New York selected by the Calculation Agent are quoting
on
the relevant LIBOR Determination Date for three-month U.S. Dollar deposits
in
Europe in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
provided
that,
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 shall
be
LIBOR as determined on the previous LIBOR Determination Date.
(3)
As
used
herein: “
Reference
Banks
”
means
four major banks in the London interbank market selected by the Calculation
Agent; and “
LIBOR
Business Day
”
means
a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in London.
[FORM
OF JUNIOR SUBORDINATED NOTE DUE 2037
“[
IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS SECURITY IS A GLOBAL SECURITY 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 ISSUER
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
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.]
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN,
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR
(III)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT, 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,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF
(III), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION OF COUNSEL
ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER INFORMATION
SATISFACTORY TO IT AND (B) THE HOLDER WILL NOTIFY ANY
PURCHASER
OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.
THE
SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN,
IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 AND
MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL
EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY
PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST
ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE
SHALL
BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, 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 THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
SECTION
408(b)(17) OF ERISA,
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 ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND 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 OR OTHER PLAN TO WHICH TITLE I OF ERISA OR SECTION
4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
“PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
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.
Horizon
Bancorp
Floating
Rate Junior Subordinated Note due 2037
No.
_____________
|
$__________
|
Horizon
Bancorp, a corporation organized and existing under the laws of Indiana
(hereinafter called the “
Company
,”
which
term includes any successor Person under the Indenture hereinafter referred
to),
for value received, hereby promises to pay to _______________ (the “Holder”), or
registered assigns, the principal sum of $__________
DOLLARS
[
if
the Security is a Global Security, then insert
:
or such
other principal amount represented hereby as may be set forth in the records
of
the Securities Registrar hereinafter referred to in accordance with the
Indenture] on January 30, 2037. The Company further promises to pay interest
on
said principal sum from December 15, 2006, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on January 30
th
,
April
30
th
,
July
30
th
and
October 30
th
of each
year, commencing on January 30, 2007, or if any such day is not a Business
Day,
on the next succeeding Business Day (and no interest shall accrue in respect
of
the amounts whose payment is so delayed for the period from and after such
Interest Payment Date until such next succeeding Business Day), except that,
if
such Business Day falls in the next succeeding calendar year, such payment
shall
be made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the Interest Payment Date, at a variable rate
per
annum, reset quarterly, equal to LIBOR plus 1.65%, together with Additional
Tax
Sums, if any, as provided in
Section
10.5
of the
Indenture, until the principal hereof is paid or duly provided for or made
available for payment;
provided
,
that
any overdue principal, premium, if any, or Additional Tax Sums and any overdue
installment of interest shall bear Additional Interest (to the extent that
the
payment of such interest shall be legally enforceable) at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.65%, compounded quarterly, from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand.
The
amount of interest payable for any interest period shall be computed and paid
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest installment. Any such interest not so punctually paid or
duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or
one or more Predecessor Securities) is registered at the close of business
on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by
the Trustee, notice whereof shall be given to Holders of Securities not less
than ten (10) days prior to such Special Record Date, or be paid at any time
in
any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities may be listed,
traded or quoted and upon such notice as may be required by such exchange or
automated quotation system, all as more fully provided in the
Indenture.
So
long
as no Event of Default pursuant to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
of the
Indenture has occurred and is continuing, the Company shall have the right,
at
any time and from time to time during the term of this Security, to defer the
payment of interest on this Security for a period of up to twenty (20)
consecutive quarterly interest payment periods (each such period, an
“
Extension
Period
”),
during which Extension Period(s), no interest shall be due and payable (except
any Additional Tax Sums that may be due and payable). No Extension Period shall
end on a date other than an Interest Payment Date, and no Extension Period
shall
extend beyond the Stated Maturity of the principal of this Security. No interest
shall be due and payable during an Extension Period (except any Additional
Tax
Sums that may be due and payable), 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 payment
of
such interest would be legally enforceable) at a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.65%, compounded quarterly, from the dates
on
which amounts would have otherwise been due and payable until paid or made
available for payment. At the end of any such Extension Period, the Company
shall pay all interest then accrued and unpaid on this Security, together with
such Additional Interest. Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest;
provided
,
that
(i) all such previous and further extensions comprising such Extension Period
do
not exceed twenty (20) quarterly interest payment periods, (ii) no Extension
Period shall end on a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the principal of
this Security. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then
due
on any Interest Payment Date, the Company may elect to begin a new Extension
Period;
provided
,
that
(i) such Extension Period does not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest
Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity
of the principal of this Security and (iv) no Event of Default pursuant to
Sections
5.1(c)
,
(e)
,
(f)
,
(g)
or
(h)
has
occurred and is continuing. The Company shall give (i) the Holder of this
Security, (ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial
owner of the Preferred Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by the Placement
Agent or the Purchaser) written notice of its election to begin any such
Extension Period no later than the close of business on the fifteenth
(15
th
)
Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral.
During
any such Extension Period, the Company 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 Company’s Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium 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 this Security (other than (a)
repurchases, redemptions or other acquisitions of Equity Interests of the
Company in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more
employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase or similar plan with respect to any Equity Interests or (3)
the
issuance of Equity Interests of the Company (or securities convertible into
or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the Company’s
Equity Interests (or any Equity Interests of a Subsidiary of the Company) for
any class or series of the Company’s Equity Interests or of any class or series
of the Company’s indebtedness for any class or series of the Company’s Equity
Interests, (c) the purchase of fractional interests in Equity Interests of
the
Company pursuant to the conversion or exchange provisions of such Equity
Interests or the security being converted or exchanged, (d) any declaration
of a
dividend in connection with any Rights Plan, the issuance of rights, Equity
Interests or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of Equity
Interests, warrants, options or other rights where the dividend Equity Interests
or the Equity Interests issuable upon exercise of such warrants, options or
other rights are the same Equity Interests as those on which the dividend is
being paid or rank
pari
passu
with or
junior to such Equity Interests).
Payment
of principal of, premium, if any, and interest on this Security shall be made
in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments of principal,
premium, if any, and interest due at the Maturity of this Security shall be
made
at the office or agency of the Company maintained for that purpose in the Place
of Payment upon surrender of such Securities to the Paying Agent, and payments
of interest shall be made, subject to such surrender where applicable, by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Paying Agent at least
ten
(10) Business Days prior to the date for payment by the Person entitled thereto
unless proper written wire transfer instructions have not been received by
the
relevant record date, in which case such payments shall be made by check mailed
to the address of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of this Security
is the Property Trustee, the payment of the principal of (and premium, if any)
and interest (including any overdue installment of interest and Additional
Tax
Sums, if any) on this Security will be made at such place and to such account
as
may be designated by the Property Trustee.
The
indebtedness evidenced by this 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 Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Security, 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 actions
as
may be necessary or appropriate to 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, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said
provisions.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Security shall not be entitled to any benefit under
the
Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has duly executed this certificate this ____ day
of
____________, 2006.
|
HORIZON
BANCORP
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
This
represents Securities referred to in the within-mentioned
Indenture.
Dated:
|
|
|
|
WILMINGTON
TRUST COMPANY
,
not
in its individual capacity but solely
as
Trustee
|
|
|
|
By:
|
|
|
|
Authorized
Officer
|
[FORM
OF
REVERSE OF SECURITY]
This
Security is one of a duly authorized issue of securities of the Company (the
“
Securities
”)
issued
under the Junior Subordinated Indenture, dated as of December 15, 2006 (the
“
Indenture
”),
between the Company and Wilmington Trust Company, as Trustee (in such capacity,
the “
Trustee
,”
which
term includes any successor trustee under the Indenture), to which Indenture
and
all indentures supplemental thereto reference is hereby made for a statement
of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Debt and the Holders of
the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All
terms
used in this Security that are defined in the Indenture or in the Amended and
Restated Trust Agreement, dated as of December 15, 2006 (as modified, amended
or
supplemented from time to time, the “
Trust
Agreement
”),
relating to Horizon Bancorp Capital Trust III (the “
Trust
”),
among
the Company, as Depositor, the trustees named therein and the holders from
time
to time of the Trust Securities issued pursuant thereto, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may
be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after January 30, 2012 and subject to the terms and conditions
of
Article
XI
of the
Indenture, redeem this Security in whole at any time or in part from time to
time at a Redemption Price equal to one hundred percent (100%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding the date fixed
for
redemption;
provided
,
that
the Company shall have received the prior approval of the Federal Reserve if
then required.
In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days’ nor more
than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of
Article
XI
of the
Indenture at the Special Event Redemption Price;
provided
,
that
the Company shall have received the prior approval of the Federal Reserve if
then required.
In
the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all the Securities are to
be
redeemed, the particular Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Trustee from the
Outstanding Securities not previously called for redemption, by such method
as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Security.
The
Indenture permits, with certain exceptions as therein provided, the Company
and
the Trustee at any time to enter into a supplemental indenture or indentures
for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities. The
Indenture also contains provisions permitting Holders of specified
percentages
in principal amount of the Securities, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is
made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest,
including any Additional Interest, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Securities Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar and duly executed by, the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Securities,
of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any such agent shall be affected by notice to the
contrary.
The
Company and, by its acceptance of this Security or a beneficial interest herein,
the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax purposes,
it
is intended that this Security constitute indebtedness.
This
Security shall be construed and enforced in accordance with and governed by
the
laws of the State of New York, without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
Form
of
Financial Officer’s Certificate
The
undersigned, the [Chief Financial Officer] [Treasurer] [Assistant Treasurer]
hereby certifies, pursuant to Section 7.3(b) of the Junior Subordinated
Indenture, dated as of December 15, 2006, between Horizon Bancorp (the
“Company”) and Wilmington Trust Company, as trustee, that, as of _______, 20__,
the Company had the following ratios and balances
:
BANK
HOLDING COMPANY
As
of
Quarterly Financial Dates
Tier
1 Risk Weighted Assets
|
_____________%
|
Ratio
of Double Leverage
|
_____________%
|
Non-Performing
Assets to Loans and OREO
|
_____________%
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
_____________%
|
Ratio
of Reserves to Non-Performing Loans
|
_____________%
|
Ratio
of Net Charge-Offs to Loans
|
_____________%
|
Return
on Average Assets (annualized)
|
_____________%
|
Net
Interest Margin (annualized)
|
_____________%
|
Efficiency
Ratio
|
_____________%
|
Ratio
of Loans to Assets
|
_____________%
|
Ratio
of Loans to Deposits
|
_____________%
|
Double
Leverage (exclude trust preferred as equity)
|
_____________%
|
Total
Assets
|
$
____________
|
Year
to Date Income
|
$
____________
|
*
A table
describing the quarterly report calculation procedures is attached.
[
FOR
FISCAL YEAR END
:
Attached hereto are the audited consolidated financial statements (including
the
balance sheet, income statement and statement of cash flows, and notes thereto,
together with the report of the independent accountants thereon) of the Company
and its consolidated subsidiaries for the three years ended _______, 20___.]
[
FOR
FISCAL QUARTER END
:
Attached hereto are the unaudited consolidated and consolidating financial
statements (including the balance sheet and income statement) of the Company
and
its consolidated subsidiaries for the fiscal quarter and [six/nine] month period
ended _______, 20___.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [___ quarter
interim] [annual] period ended _______, 20__, and such
financial
statements have been prepared in accordance with GAAP consistently applied
throughout the period involved (except as otherwise noted therein).
IN
WITNESS WHEREOF, the undersigned has executed this Financial Officer’s
Certificate as of this _____ day of _____________, 20__
|
|
|
Name:
|
|
Title:
|
|
Horizon
Bancorp
|
|
515
Franklin Square
|
|
Michigan
City, Indiana 46360
|
|
(219)
879-0211
|
Financial
Definitions
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Tier
1 Risk
Weighted
Assets
|
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
Ratio
of Double Leverage
|
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries divided by the total equity capital.
This field is calculated at the parent company level. “Subsidiaries”
include bank, bank holding company, and non-bank
subsidiaries.
|
Non-Performing
Assets to Loans and OREO
|
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital - Goodwill)/(Total Assets - Goodwill)
|
Ratio
of Reserves to Non-Performing Loans
|
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual
+ Restructured)
|
Ratio
of Net Charge-Offs to Loans
|
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
Return
on Average Assets (annualized)
|
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
Net
Interest Margin (annualized)
|
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
Ratio
of Loans to Assets
|
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
Ratio
of Loans to Deposits
|
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign
Deposits)
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash and balances due from depository
institutions; securities; federal funds sold and securities purchased
under agreements to resell; loans and lease financing receivables;
trading
assets; premises and fixed assets; other real estate owned; investments
in
unconsolidated subsidiaries and associated companies; customer’s liability
on acceptances outstanding; intangible assets; and other
assets.
|
Net
Income
|
(BHCK4300)
Schedule
HI
|
The
sum of income (loss)before extraordinary items and other adjustments
and
extraordinary items; and other adjustments, net of income
taxes.
|
FORM
OF
OFFICERS’
CERTIFICATE
UNDER
SECTION
10.3
Pursuant
to Section 10.3 of the Junior Subordinated Indenture, dated as of December
15,
2006 (as amended or supplemented from time to time, the “Indenture”), between
Horizon Bancorp, as issuer (the “Company”), and Wilmington Trust Company, as
trustee, each of the undersigned hereby certifies that, to the knowledge of
the
undersigned, the Company is not in default in the performance or observance
of
any of the terms, provisions or conditions contained in the Indenture (without
regard to any period of grace or requirement of notice provided under the
Indenture), for the fiscal year ending on ________, 20__ [, except as follows:
specify
each such default and the nature and status thereof
].
Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings assigned thereto in the Indenture.
IN
WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
___________, 20__.
|
|
|
|
Name:
|
|
|
Title:
|
[
Must
be the Chairman of the Board, a Vice Chairman of the Board, the Chief
Executive Officer, the President, or a Vice President
]
of Horizon Bancorp
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
Title:
|
[
Must
be the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the
Secretary or an Assistant
Secretary]
of Horizon Bancorp
|
Exhibit
4.2
AMENDED
AND RESTATED TRUST AGREEMENT
among
HORIZON
BANCORP,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Property Trustee
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
________________
Dated
as
of December 15, 2006
HORIZON
BANCORP CAPITAL TRUST III
TABLE
OF CONTENTS
Page
ARTICLE
I.
|
Defined
Terms
|
1
|
SECTION
1.1.
|
Definitions.
|
1
|
|
|
|
ARTICLE
II.
|
The
Trust
|
11
|
SECTION
2.1.
|
Name.
|
11
|
SECTION
2.2.
|
Office
of the Delaware Trustee; Principal Place of Business.
|
11
|
SECTION
2.3.
|
Initial
Contribution of Trust Property; Fees, Costs and Expenses.
|
11
|
SECTION
2.4.
|
Purposes
of Trust.
|
11
|
SECTION
2.5.
|
Authorization
to Enter into Certain Transactions.
|
12
|
SECTION
2.6.
|
Assets
of Trust.
|
14
|
SECTION
2.7.
|
Title
to Trust Property.
|
15
|
|
|
|
ARTICLE
III.
|
Payment
Account; Paying Agents
|
15
|
SECTION
3.1.
|
Payment
Account.
|
15
|
SECTION
3.2.
|
Appointment
of Paying Agents.
|
15
|
|
|
|
ARTICLE
IV.
|
Distributions;
Redemption
|
16
|
SECTION
4.1.
|
Distributions.
|
16
|
SECTION
4.2.
|
Redemption.
|
17
|
SECTION
4.3.
|
Subordination
of Common Securities.
|
20
|
SECTION
4.4.
|
Payment
Procedures.
|
21
|
SECTION
4.5.
|
Withholding
Tax.
|
21
|
SECTION
4.6.
|
Tax
Returns and Other Reports.
|
21
|
SECTION
4.7.
|
Payment
of Taxes, Duties, Etc. of the Trust.
|
22
|
SECTION
4.8.
|
Payments
under Indenture or Pursuant to Direct Actions.
|
22
|
SECTION
4.9.
|
Exchanges.
|
22
|
SECTION
4.10.
|
Calculation
Agent.
|
23
|
SECTION
4.11.
|
Certain
Accounting Matters.
|
23
|
|
|
|
ARTICLE
V.
|
Securities
|
24
|
SECTION
5.1.
|
Initial
Ownership.
|
24
|
SECTION
5.2.
|
Authorized
Trust Securities.
|
24
|
SECTION
5.3.
|
Issuance
of the Common Securities; Subscription and Purchase of
Notes.
|
24
|
SECTION
5.4.
|
The
Securities Certificates.
|
25
|
SECTION
5.5.
|
Rights
of Holders.
|
25
|
SECTION
5.6.
|
Book-Entry
Preferred Securities.
|
26
|
SECTION
5.7.
|
Registration
of Transfer and Exchange of Preferred Securities
Certificates.
|
28
|
SECTION
5.8.
|
Mutilated,
Destroyed, Lost or Stolen Securities Certificates.
|
29
|
SECTION
5.9.
|
Persons
Deemed Holders.
|
30
|
SECTION
5.10.
|
Cancellation.
|
30
|
SECTION
5.11.
|
Ownership
of Common Securities by Depositor.
|
30
|
SECTION
5.12.
|
Restricted
Legends.
|
31
|
SECTION
5.13.
|
Form
of Certificate of Authentication.
|
33
|
ARTICLE
VI.
|
Meetings;
Voting; Acts of Holders
|
34
|
SECTION
6.1.
|
Notice
of Meetings.
|
34
|
SECTION
6.2.
|
Meetings
of Holders of the Preferred Securities.
|
34
|
SECTION
6.3.
|
Voting
Rights.
|
34
|
SECTION
6.4.
|
Proxies,
Etc.
|
35
|
SECTION
6.5.
|
Holder
Action by Written Consent.
|
35
|
SECTION
6.6.
|
Record
Date for Voting and Other Purposes.
|
35
|
SECTION
6.7.
|
Acts
of Holders.
|
35
|
SECTION
6.8.
|
Inspection
of Records.
|
36
|
SECTION
6.9.
|
Limitations
on Voting Rights.
|
36
|
SECTION
6.10.
|
Acceleration
of Maturity; Rescission of Annulment; Waivers of Past
Defaults.
|
37
|
|
|
|
ARTICLE
VII.
|
Representations
and Warranties
|
39
|
SECTION
7.1.
|
Representations
and Warranties of the Property Trustee and the Delaware
Trustee.
|
39
|
SECTION
7.2.
|
Representations
and Warranties of Depositor.
|
41
|
|
|
|
ARTICLE
VIII.
|
The
Trustees
|
42
|
SECTION
8.1.
|
Number
of Trustees.
|
42
|
SECTION
8.2.
|
Property
Trustee Required.
|
42
|
SECTION
8.3.
|
Delaware
Trustee Required.
|
42
|
SECTION
8.4.
|
Appointment
of Administrative Trustees.
|
43
|
SECTION
8.5.
|
Duties
and Responsibilities of the Trustees.
|
43
|
SECTION
8.6.
|
Notices
of Defaults and Extensions.
|
45
|
SECTION
8.7.
|
Certain
Rights of Property Trustee.
|
45
|
SECTION
8.8.
|
Delegation
of Power.
|
47
|
SECTION
8.9.
|
May
Hold Securities.
|
47
|
SECTION
8.10.
|
Compensation;
Reimbursement; Indemnity.
|
48
|
SECTION
8.11.
|
Resignation
and Removal; Appointment of Successor.
|
49
|
SECTION
8.12.
|
Acceptance
of Appointment by Successor.
|
50
|
SECTION
8.13.
|
Merger,
Conversion, Consolidation or Succession to Business.
|
50
|
SECTION
8.14.
|
Not
Responsible for Recitals or Issuance of Securities.
|
51
|
SECTION
8.15.
|
Property
Trustee May File Proofs of Claim.
|
51
|
SECTION
8.16.
|
Reports
to and from the Property Trustee.
|
52
|
|
|
|
ARTICLE
IX.
|
Termination,
Liquidation and Merger
|
52
|
SECTION
9.1.
|
Dissolution
Upon Expiration Date.
|
52
|
SECTION
9.2.
|
Early
Termination.
|
52
|
SECTION
9.3.
|
Termination.
|
53
|
SECTION
9.4.
|
Liquidation.
|
53
|
SECTION
9.5.
|
Mergers,
Consolidations, Amalgamations or Replacements of Trust.
|
54
|
|
|
|
ARTICLE
X.
|
Information
to Purchaser
|
56
|
SECTION
10.1.
|
Depositor
Obligations to Purchaser.
|
56
|
SECTION
10.2.
|
Property
Trustee’s Obligations to Purchaser.
|
56
|
|
|
|
ARTICLE
XI.
|
Miscellaneous
Provisions
|
56
|
SECTION
11.1.
|
Limitation
of Rights of Holders.
|
56
|
SECTION
11.2.
|
Agreed
Tax Treatment of Trust and Trust Securities.
|
56
|
SECTION
11.3.
|
Amendment.
|
57
|
SECTION
11.4.
|
Separability.
|
58
|
SECTION
11.5.
|
Governing
Law.
|
58
|
SECTION
11.6.
|
Successors.
|
58
|
SECTION
11.7.
|
Headings.
|
58
|
SECTION
11.8.
|
Reports,
Notices and Demands.
|
59
|
SECTION
11.9.
|
Agreement
Not to Petition.
|
59
|
|
|
|
Exhibit
A
|
Certificate
of Trust of Horizon Bancorp Capital Trust III
|
|
Exhibit
B
|
Form
of Common Securities Certificate
|
|
Exhibit
C
|
Form
of Preferred Securities Certificate
|
|
Exhibit
D
|
Junior
Subordinated Indenture
|
|
Exhibit
E
|
Form
of Transferee Certificate to be Executed by Transferees other than
QIBs
|
|
Exhibit
F
|
Form
of Transferor Certificate to be Executed by QIBs
|
|
Exhibit
G
|
Form
of Officer’s Financial Certificate
|
|
Exhibit
H
|
Officers’
Certificate pursuant to Section 8.16(a)
|
|
|
|
|
Schedule
A
|
Calculation
of LIBOR
|
|
AMENDED
AND RESTATED TRUST AGREEMENT, dated as of December 15, 2006, among (i) Horizon
Bancorp, an Indiana corporation (including any successors or permitted assigns,
the “Depositor”), (ii)
Wilmington
Trust Company
,
a
Delaware banking corporation, as property trustee (in such capacity, the
“Property Trustee”), (iii) Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”),
(iv) Craig M. Dwight, an individual, Thomas H. Edwards, an individual, and
James
H. Foglesong, an individual, each of whose address is c/o Horizon Bancorp,
515
Franklin Square, Michigan City, Indiana 46360, as administrative trustees (in
such capacities, each an “Administrative Trustee” and, collectively, the
“Administrative Trustees” and, together with the Property Trustee and the
Delaware Trustee, the “Trustees”) and (v) the several Holders, as hereinafter
defined.
WITNESSETH
Whereas
,
the
Depositor, the Property Trustee and the Delaware Trustee have heretofore created
a Delaware statutory trust pursuant to the Delaware Statutory Trust Act by
entering into a Trust Agreement, dated as of December 4, 2006 (the “Original
Trust Agreement”), and by executing and filing with the Secretary of State of
the State of Delaware the Certificate of Trust, substantially in the form
attached as
Exhibit
A
;
and
Whereas,
the
Depositor
and the Trustees desire to amend and restate the Original Trust Agreement in
its
entirety as set forth herein to provide for, among other things, (i) the
issuance of the Common Securities by the Trust to the Depositor, (ii) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Subscription Agreement and (iii) the acquisition by the Trust from the Depositor
of all of the right, title and interest in and to the Notes;
Now,
Therefore,
in
consideration of the agreements and obligations set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and for the
benefit of the Holders, hereby amends and restates the Original Trust Agreement
in its entirety and agrees as follows:
ARTICLE
I.
DEFINED
TERMS
SECTION
1.1.
Definitions.
For
all
purposes of this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a)
the
terms
defined in this
Article
I
have the
meanings assigned to them in this Article I;
(b)
the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c)
all
accounting terms used but not defined herein have the meanings assigned to
them
in accordance with United States generally accepted accounting
principles;
(d)
unless
the context otherwise requires, any reference to an “Article”, a “Section”, a
“Schedule” or an “Exhibit” refers to an Article, a Section, a Schedule or an
Exhibit, as the case may be, of or to this Trust Agreement;
(e)
the
words
“hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Trust Agreement as a whole and not to any particular Article,
Section or other subdivision;
(f)
a
reference to the singular includes the plural and vice versa; and
(g)
the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
has
the meaning specified in
Section
6.7
.
“Additional
Interest” has the meaning specified in
Section
1.1
of the
Indenture.
“Additional
Interest Amount” means, with respect to Trust Securities of a given Liquidation
Amount and/or a given period, the amount of Additional Interest paid by the
Depositor on a Like Amount of Notes for such period.
“Additional
Taxes” has the meaning specified in
Section
1.1
of the
Indenture.
“Additional
Tax Sums” has the meaning specified in
Section
10.5
of the
Indenture.
“Administrative
Trustee” means each of the Persons identified as an “Administrative Trustee” in
the preamble to this Trust Agreement, solely in each such Person’s capacity as
Administrative Trustee of the Trust and not in such Person’s individual
capacity, or any successor Administrative Trustee appointed as herein
provided.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Preferred Security, the rules and procedures of the
Depositary for such Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
“Bankruptcy
Event” means, with respect to any Person:
(a)
the
entry of a decree or order by a court having jurisdiction in the premises
(i)
judging such Person a bankrupt or insolvent, (ii) approving as properly filed
a
petition seeking reorganization, arrangement, adjudication or composition
of or
in respect of such Person under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, (iii) appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of such Person or of any substantial part of its property or (iv) ordering
the
winding up or liquidation of its affairs, and the continuance of any such
decree
or order unstayed and in effect for a period of sixty (60) consecutive days;
or
(b)
the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Bankruptcy Law, or the
consent by it to the filing of any such petition or to the appointment of a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by
it in writing of its inability to pay its debts generally as they become due
and
its willingness to be adjudicated a bankrupt or insolvent, or the taking of
corporate action by such Person in furtherance of any such action.
“Bankruptcy
Laws” means all Federal and state bankruptcy, insolvency, reorganization and
other similar laws, including the United States Bankruptcy Code.
“Book-Entry
Preferred Security” means a Preferred Security, the ownership and transfers of
which shall be made through book entries by a Depositary.
“Business
Day” means a day other than (a) a Saturday or Sunday, (b) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (c) a day on which the Corporate Trust
Office is closed for business.
“Calculation
Agent” has the meaning specified in
Section
10.4
of the
Indenture.
“Capital
Disqualification Event” has the meaning specified in
Section
1.1
of the
Indenture.
“Closing
Date” has the meaning specified in the Placement Agreement.
“Code”
means the United States Internal Revenue Code of 1986, as amended.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such time.
“Common
Securities Certificate” means a certificate evidencing ownership of Common
Securities, substantially in the form attached as
Exhibit
B
.
“Common
Security” means a common security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the terms provided therefor in this
Trust Agreement.
“Corporate
Trust Office” means the principal office of the Property Trustee at which any
particular time its corporate trust business shall be administered, which office
at the date of this Trust Agreement is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Capital Markets.
“Definitive
Preferred Securities Certificates” means Preferred Securities issued in
certificated, fully registered form that are not Global Preferred
Securities.
“Delaware
Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code § 3801 et seq., or any successor statute thereto, in each case as amended
from time to time.
“Delaware
Trustee” means the Person identified as the “Delaware Trustee” in the preamble
to this Trust Agreement, solely in its capacity as Delaware Trustee of the
Trust
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware Trustee appointed as herein
provided.
“Depositary”
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Depositor or any successor thereto.
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 the Depositary.
“Depositor”
has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.
“Depositor
Affiliate” has the meaning specified in
Section
4.9
.
“Distribution
Date” has the meaning specified in
Section
4.1(a)(i)
.
“Distributions”
means amounts payable in respect of the Trust Securities as provided in
Section
4.1
.
“DTC”
means The Depository Trust Company or any successor thereto.
“Early
Termination Event” has the meaning specified in
Section
9.2
.
“Equity
Interests” means any of (a) the partnership interests (general or limited) in a
partnership, (b) the membership interests in a limited liability company or
(c)
the shares or stock interests (both common stock and preferred stock) in a
corporation.
“Event
of
Default” means any one of the following events (whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or
any order, rule or regulation of any administrative or governmental
body):
(a)
the
occurrence of a Note Event of Default; or
(b)
default by the Trust in the payment of any Distribution when it becomes due
and
payable, and continuation of such default for a period of thirty (30) days;
or
(c)
default by the Trust in the payment of any Redemption Price of any Trust
Security when it becomes due and payable; or
(d)
default in the performance, or breach, in any material respect of any covenant
or warranty of the Trustees in this Trust Agreement (other than those specified
in clause (b) or (c) above) and continuation of such default or breach for
a
period of thirty (30) days after there has been given, by registered or
certified mail, to the Trustees and to the Depositor by the Holders of at least
twenty five percent (25%) in aggregate Liquidation Amount of the Outstanding
Preferred Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or
(e)
the
occurrence of a Bankruptcy Event with respect to the Property Trustee if a
successor Property Trustee has not been appointed within ninety (90) days
thereof.
“Exchange
Act” means the Securities Exchange Act of 1934, and any successor statute
thereto, in each case as amended from time to time.
“Expiration
Date” has the meaning specified in
Section
9.1
.
“Extension
Period” has the meaning specified in
Section
4.1(a)(ii)
.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System, the staff
thereof, or a Federal Reserve Bank, acting through delegated authority, in
each
case under the rules, regulations and policies of the Federal Reserve System,
or
if at any time after the execution of this Trust Agreement any such entity
is
not existing and performing the duties now assigned to it , any successor body
performing similar duties or functions.
“Fiscal
Year” shall be the fiscal year of the Trust, which shall be the calendar year,
or such other period as is required by the Code.
“Global
Preferred Security” means a Preferred Securities Certificate evidencing
ownership of Book-Entry Preferred Securities.
“Guarantee
Agreement” means the Guarantee Agreement executed and delivered by the Depositor
and Wilmington Trust Company, as guarantee trustee, contemporaneously with
the
execution and delivery of this Trust Agreement for the benefit of the holders
of
the Preferred Securities, as amended from time to time.
“Holder”
means a Person in whose name a Trust Security or Trust Securities are registered
in the Securities Register; any such Person shall be a beneficial owner within
the meaning of the Delaware Statutory Trust Act.
“Indemnified
Person” has the meaning specified in
Section
8.10(c)
.
“Indenture”
means the Junior Subordinated Indenture executed and delivered by the Depositor
and the Note Trustee contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Notes, a copy of which
is
attached hereto as
Exhibit
D
,
as
amended or supplemented from time to time.
“Indenture
Redemption Price” has the meaning specified in
Section
4.2(c)
.
“Interest
Payment Date” has the meaning specified in
Section
1.1
of the
Indenture.
“Investment
Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.
“Investment
Company Event” has the meaning specified in
Section
1.1
of the
Indenture.
“LIBOR”
has the meaning specified in
Schedule
A
.
“LIBOR
Business Day” has the meaning specified in
Schedule
A
.
“LIBOR
Determination Date” has the meaning specified in
Schedule
A
.
“Lien”
means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever.
“Like
Amount” means (a) with respect to a redemption of any Trust Securities, Trust
Securities having a Liquidation Amount equal to the principal amount of Notes
to
be contemporaneously redeemed or paid at maturity in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Notes to Holders
of
Trust Securities in connection with a dissolution of the Trust, Notes having
a
principal amount equal to the Liquidation Amount of the Trust Securities of
the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
“Liquidation
Amount” means the stated amount of $1,000 per Trust Security.
“Liquidation
Date” means the date on which assets are to be distributed to Holders in
accordance with
Section
9.4(a)
hereunder following dissolution of the Trust.
“Liquidation
Distribution” has the meaning specified in
Section
9.4(d)
.
“Majority
in Liquidation Amount of the Preferred Securities” means Preferred Securities
representing more than fifty percent (50%) of the aggregate Liquidation Amount
of all (or a specified group of) then Outstanding Preferred
Securities.
“Note
Event of Default” means any “Event of Default” specified in
Section
5.1
of the
Indenture.
“Note
Redemption Date” means, with respect to any Notes to be redeemed under the
Indenture, the date fixed for redemption of such Notes under the
Indenture.
“Note
Trustee” means the Person identified as the “Trustee” in the Indenture, solely
in its capacity as Trustee pursuant to the Indenture and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Trustee appointed as provided in the Indenture.
“Notes”
means the Depositor’s Floating Rate Junior Subordinated Notes issued pursuant to
the Indenture.
“Officers’
Certificate” means a certificate signed by the Chief Executive Officer, the
President or an Executive Vice President, and by the Chief Financial Officer,
Treasurer or an Assistant Treasurer, of the Depositor, and delivered to the
Trustees. Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement (other than the
certificate provided pursuant to
Section
8.16(a)
)
shall
include:
(a)
a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating
thereto;
(b)
a
brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;
(c)
a
statement that such officer has made such examination or investigation as,
in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
“Operative
Documents” means the Placement Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement, the Subscription Agreement, the Notes and the Trust
Securities.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Depositor or any Affiliate of the Depositor.
“Original
Issue Date” means the date of original issuance of the Trust
Securities.
“Original
Trust Agreement” has the meaning specified in the recitals to this Trust
Agreement.
“Outstanding”,
when used with respect to any Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(a)
Trust
Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;
(b)
Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities; provided, that if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c)
Trust
Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to the provisions
of
this Trust Agreement, unless proof satisfactory to the Property Trustee is
presented that any such Trust Securities are held by Holders in whose hands
such
Trust Securities are valid, legal and binding obligations of the
Trust;
provided,
that in determining whether the Holders of the requisite Liquidation Amount
of
the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or of any Trustee shall be disregarded and deemed not to be Outstanding, except
that (i) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of
the
Outstanding Preferred Securities are owned by the Depositor, one or more of
the
Trustees and/or any such Affiliate. Preferred Securities so owned that have
been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustees the pledgee’s right so to act
with respect to such Preferred Securities and that the pledgee is not the
Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.
“Owner”
means each Person who is the beneficial owner of Book-Entry Preferred 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 Depositary Participant.
“Paying
Agent” means any Person authorized by the Administrative Trustees to pay
Distributions or other amounts in respect of any Trust Securities on behalf
of
the Trust.
“Payment
Account” means a segregated non-interest-bearing corporate trust account
maintained by the Property Trustee for the benefit of the Holders in which
all
amounts paid in respect of the Notes will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with
Sections
3.1
,
4.1
and
4.2
.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited
liability company, trust,
unincorporated
association or government, or any agency or political subdivision thereof,
or
any other entity of whatever nature.
“Placement
Agent” means J.P. Morgan Securities Inc., as Placement Agent pursuant to the
Placement Agreement, whose address is 270 Park Avenue, New York, New York
10017.
“Placement
Agreement” means the Placement Agreement, dated as of December 15, 2006,
executed and delivered by the Trust, the Depositor and J.P. Morgan Securities
Inc., as placement agent.
“Preferred
Security” means a preferred security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the terms provided therefor in this
Trust Agreement.
“Preferred
Securities Certificate” means a certificate evidencing ownership of Preferred
Securities, substantially in the form attached as
Exhibit
C
.
“Property
Trustee” means the Person identified as the “Property Trustee” in the preamble
to this Trust Agreement, solely in its capacity as Property Trustee of the
Trust
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Property Trustee appointed as herein
provided.
“Purchaser”
means TWE, Ltd., as purchaser of the Preferred Securities pursuant to the
Subscription Agreement, whose address is c/o Maples Finance Limited, P.O. Box
1093 GT, Queensgate House, South Church Street, George Town, Grand Cayman,
Cayman Islands, Attention: The Directors, or any other address previously
furnished by the Purchaser.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act.
“Redemption
Date” means, with respect to any Trust Security to be redeemed, the date fixed
for such redemption by or pursuant to this Trust Agreement; provided, that
each
Note Redemption Date and the stated maturity (or any date of principal repayment
upon early maturity) of the Notes shall be a Redemption Date for a Like Amount
of Trust Securities.
“Redemption
Price” means, with respect to any Trust Security, the Liquidation Amount of such
Trust Security, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, paid by the Depositor
upon
the concurrent redemption or payment at maturity of a Like Amount of
Notes.
“Reference
Banks” has the meaning specified in
Schedule
A
.
“Responsible
Officer” means, with respect to the Property Trustee, any Senior Vice President,
any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer in the Corporate Trust Office
of
the Property Trustee with direct responsibility for the administration of this
Trust Agreement and also means, with respect to a particular
corporate
trust matter, any other officer of the Property Trustee 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, and any successor statute thereto, in
each case as amended from time to time.
“Securities
Certificate” means any one of the Common Securities Certificates or the
Preferred Securities Certificates.
“Securities
Register” and “Securities Registrar” have the respective meanings specified in
Section
5.7
.
“Special
Event Redemption Price” has the meaning specified in
Section
11.2
of the
Indenture.
“Subscription
Agreement” means the Preferred Securities Subscription Agreement, dated as of
December 15, 2006, by and among the Company, the Trust, the Purchaser and J.P.
Morgan Securities Inc. (as to certain provisions thereof).
“Successor
Securities” has the meaning specified in
Section
9.5(a)
.
“Tax
Event” has the meaning specified in
Section
1.1
of the
Indenture.
“Trust”
means the Delaware statutory trust known as “Horizon Bancorp Capital Trust III,”
which was created on December 4, 2006, under the Delaware Statutory Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate
of
Trust, and continued pursuant to this Trust Agreement.
“Trust
Agreement” means this Amended and Restated Trust Agreement, including all
Schedules and Exhibits (other than
Exhibit
D
),
as the
same may be modified, amended or supplemented from time to time in accordance
with the applicable provisions hereof.
“Trustees”
means the Administrative Trustees, the Property Trustee and the Delaware
Trustee, each as defined in this
Article
I
.
“Trust
Property” means (a) the Notes, (b) any cash on deposit in, or owing to, the
Payment Account and (c) all proceeds and rights in respect of the foregoing
and
any other property and assets for the time being held or deemed to be held
by
the Property Trustee pursuant to the trusts of this Trust
Agreement.
“Trust
Security” means any one of the Common Securities or the Preferred
Securities.
ARTICLE
II.
THE
TRUST
SECTION
2.1.
Name.
The
trust
continued hereby shall be known as “Horizon Bancorp Capital Trust III,” as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other Trustees, in
which name the Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be
sued.
SECTION
2.2.
Office
of
the Delaware Trustee; Principal Place of Business.
The
address of the Delaware Trustee in the State of Delaware is Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Capital Markets, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders, the Depositor, the
Property Trustee and the Administrative Trustees. The principal executive office
of the Trust is c/o Horizon Bancorp, 515 Franklin Square, Michigan City, Indiana
46360, Attention: Chief Financial Officer, as such address may be changed from
time to time by the Administrative Trustees following written notice to the
Holders and the other Trustees.
SECTION
2.3.
Initial
Contribution of Trust Property; Fees, Costs and Expenses.
The
Property Trustee acknowledges receipt from the Depositor in connection with
the
Original Trust Agreement of the sum of ten dollars ($10), which constituted
the
initial Trust Property. The Depositor shall pay all fees, costs and expenses
of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim
upon
the Trust Property for the payment of such fees, costs or expenses.
SECTION
2.4.
Purposes
of Trust.
(a)
The
exclusive purposes and functions of the Trust are to (i) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Notes and (ii)
engage in only those activities necessary or incidental thereto. The Delaware
Trustee, the Property Trustee and the Administrative Trustees are trustees
of
the Trust, and have all the rights, powers and duties to the extent set forth
herein. The Trustees hereby acknowledge that they are trustees of the
Trust.
(b)
So
long
as this Trust Agreement remains in effect, the Trust (or the Trustees acting
on
behalf of the Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular,
the
Trust (or the Trustees acting on behalf of the Trust) shall not (i) acquire
any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) incur any indebtedness for borrowed
money or issue any other debt, (iv) take or consent to any action that would
result in the placement of a Lien on
any
of
the Trust Property, (v) take or consent to any action that would reasonably
be
expected to cause (or, in the case of the Property Trustee, to the actual
knowledge of a Responsible Officer would cause) the Trust to become taxable
as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes, (vi) take or consent to any action that would
cause
(or, in the case of the Property Trustee, to the actual knowledge of a
Responsible Officer would cause) the Notes to be treated as other than
indebtedness of the Depositor for United States federal income tax purposes
or
(vii) take or consent to any action that would cause (or, in the case of the
Property Trustee, to the actual knowledge of a Responsible Officer would cause)
the Trust to be deemed to be an “investment company” required to be registered
under the Investment Company Act.
SECTION
2.5.
Authorization
to Enter into Certain Transactions.
(a)
The
Trustees shall conduct the affairs of the Trust in accordance with and subject
to the terms of this Trust Agreement. In accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into
all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees,
under this Trust Agreement, and to perform all acts in furtherance thereof,
including the following:
(i)
As
among
the Trustees, each Administrative Trustee shall severally have the power,
authority and authorization to act on behalf of the Trust with respect to the
following matters:
(A)
the
issuance and sale of the Trust Securities;
(B)
to
cause
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, such agreements, documents, instruments, certificates and other writings
as may be necessary or desirable in connection with the purposes and function
of
the Trust, including, without limitation, a common securities subscription
agreement and a junior subordinated note subscription agreement and to cause
the
Trust to perform under the Placement Agreement and the Subscription
Agreement;
(C)
assisting
in the sale of the Preferred Securities in one or more transactions exempt
from
registration under the Securities Act, and in compliance with applicable state
securities or blue sky laws;
(D)
assisting
in the sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Notes to the Holders in accordance with
this Trust Agreement;
(E)
the
appointment of a successor Paying Agent and Calculation Agent in accordance
with
this Trust Agreement;
(F)
execution
and delivery of the Trust Securities on behalf of the Trust in accordance with
this Trust Agreement;
(G)
execution
and delivery of closing certificates, if any, pursuant to the Placement
Agreement;
(H)
preparation
and filing of all applicable tax returns and tax information reports that are
required to be filed on behalf of the Trust;
(I)
establishing
a record date with respect to all actions to be taken hereunder that require
a
record date to be established, except as provided in
Section
6.10(a)
;
(J)
unless
otherwise required by the Delaware Statutory Trust Act, to execute on behalf
of
the Trust (either acting alone or together with the other Administrative
Trustees) any documents and other writings that such Administrative Trustee
has
the power to execute pursuant to this Trust Agreement; and
(K)
the
taking of any action incidental to the foregoing as such Administrative Trustee
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii)
As
among
the Trustees, the Property Trustee shall have the power, authority and
authorization to act on behalf of the Trust with respect to the following
matters:
(A)
the
receipt and holding of legal title of the Notes;
(B)
the
establishment of the Payment Account;
(C)
the
receipt of interest, principal and any other payments made in respect of the
Notes and the holding of such amounts in the Payment Account;
(D)
the
distribution through the Paying Agent of amounts distributable to the Holders
in
respect of the Trust Securities;
(E)
the
exercise of all of the rights, powers and privileges of a holder of the Notes
in
accordance with the terms of this Trust Agreement;
(F)
the
sending of notices of default and other information regarding the Trust
Securities and the Notes to the Holders in accordance with this Trust
Agreement;
(G)
the
distribution of the Trust Property in accordance with the terms of this Trust
Agreement;
(H)
to
the
extent provided in this Trust Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation of the Trust with the Secretary of State of the
State of Delaware;
(I)
application
for a taxpayer identification number for the Trust;
(J)
the
authentication of the Preferred Securities as provided in this Trust Agreement;
and
(K)
the
taking of any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(b)
In
connection with the issue and sale of the Preferred Securities, the Depositor
shall have the right and responsibility to assist the Trust with respect to,
or
effect on behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i)
the
negotiation of the terms of, and the execution and delivery of, the Placement
Agreement and the Subscription Agreement providing for the sale of the Preferred
Securities in one or more transactions exempt from registration under the
Securities Act, and in compliance with applicable state securities or blue
sky
laws; and
(ii)
the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(c)
Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized
and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be taxable as a corporation or classified as other than
a
grantor trust for United States federal income tax purposes, so that the Notes
will be treated as indebtedness of the Depositor for United States federal
income tax purposes and so that the Trust will not be deemed to be an
“investment company” required to be registered under the Investment Company Act.
In this connection, each Administrative Trustee is authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that such Administrative Trustee determines in his or her
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Outstanding Preferred Securities. In no event shall the
Administrative Trustees be liable to the Trust or the Holders for any failure
to
comply with this
Section
2.5
to the
extent that such failure results solely from a change in law or regulation
or in
the interpretation thereof.
(d)
Any
action taken by a Trustee in accordance with its powers shall constitute the
act
of and serve to bind the Trust. In dealing with any Trustee acting on behalf
of
the Trust, no Person shall be required to inquire into the authority of such
Trustee to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of any Trustee as set forth in this
Trust Agreement.
SECTION
2.6.
Assets
of
Trust.
The
assets of the Trust shall consist of the Trust Property.
SECTION
2.7.
Title
to
Trust Property.
(a)
Legal
title to all Trust Property shall be vested at all times in the Property Trustee
and shall be held and administered by the Property Trustee in trust for the
benefit of the Trust and the Holders in accordance with this Trust
Agreement.
(b)
The
Holders shall not have any right or title to the Trust Property other than
the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement.
ARTICLE
III.
PAYMENT
ACCOUNT; PAYING AGENTS
SECTION
3.1.
Payment
Account.
(a)
On
or
prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and the Paying Agent shall have exclusive control
and sole right of withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account in accordance
with this Trust Agreement. All monies and other property deposited or held
from
time to time in the Payment Account shall be held by the Property Trustee in
the
Payment Account for the exclusive benefit of the Holders and for Distribution
as
herein provided.
(b)
The
Property Trustee shall deposit in the Payment Account, promptly upon receipt,
all payments of principal of or interest on, and any other payments with respect
to, the Notes. Amounts held in the Payment Account shall not be invested by
the
Property Trustee pending distribution thereof.
SECTION
3.2.
Appointment
of Paying Agents.
The
Property Trustee is appointed as the initial Paying Agent and hereby accepts
such appointment. The Paying Agent shall make Distributions to Holders from
the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. Any Person acting as Paying Agent shall be permitted to resign
as
Paying Agent upon thirty (30) days’ written notice to the Administrative
Trustees and the Property Trustee. If the Property Trustee shall no longer
be
the Paying Agent or a successor Paying Agent shall resign or its authority
to
act be revoked, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company) to act as Paying Agent. Such successor Paying
Agent appointed by the Administrative Trustees shall execute and deliver to
the
Trustees an instrument in which such successor Paying Agent shall agree with
the
Trustees that as Paying Agent, such successor Paying Agent will hold all sums,
if any, held by it for payment to the Holders in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders. The
Paying
Agent
shall return all unclaimed funds to the Property Trustee and upon removal of
a
Paying Agent such Paying Agent shall also return all funds in its possession
to
the Property Trustee. The provisions of
Article
VIII
shall
apply to the Property Trustee also in its role as Paying Agent, for so long
as
the Property Trustee shall act as Paying Agent and, to the extent applicable,
to
any other Paying Agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE
IV.
DISTRIBUTIONS;
REDEMPTION
SECTION
4.1.
Distributions.
(a)
The
Trust
Securities represent undivided beneficial interests in the Trust Property,
and
Distributions (including any Additional Interest Amounts) will be made on the
Trust Securities at the rate and on the dates that payments of interest
(including any Additional Interest) are made on the Notes.
Accordingly:
(i)
Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or
not
there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from December 15, 2006, and, except as provided
in clause (ii) below, shall be payable quarterly in arrears on January
30
th
,
April
30
th
,
July
30
th
,
October
30
th
of each
year, commencing on January 30, 2007. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding Business
Day
(and no interest shall accrue in respect of the amounts whose payment is so
delayed for the period from and after each such date until the next succeeding
Business Day), except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date (each
date on which Distributions are payable in accordance with this
Section
4.1(a)(i)
,
a
“Distribution Date”);
(ii)
in
the
event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, Distributions on the
Trust Securities shall be deferred. Under the Indenture, so long as no Note
Event of Default pursuant to paragraphs
(c)
,
(e)
,
(f)
,
(g)
or
(h)
of
Section
5.1
of the
Indenture has occurred and is continuing, the Depositor shall have the right,
at
any time and from time to time during the term of the Notes, to defer the
payment of interest on the Notes for a period of up to twenty (20) consecutive
quarterly interest payment periods (each such extended interest payment period,
an “Extension Period”), during which Extension Period no interest on the Notes
shall be due and payable (except any Additional Tax Sums that may be due and
payable). No interest on the Notes 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 payment of such interest would be legally
enforceable) at a variable
rate
per
annum, reset quarterly, equal to LIBOR plus 1.65%, compounded quarterly, from
the
dates
on which amounts would have otherwise been due and payable until paid or until
funds for the payment thereof have been made available for payment. If
Distributions are deferred, the deferred Distributions (including Additional
Interest Amounts) shall be paid on the date that the related Extension Period
terminates, to Holders of the Trust Securities as they appear on the books
and
records of the Trust on the record date immediately preceding such termination
date.
(iii)
Distributions
shall accumulate in respect of the Trust Securities at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.65% of the Liquidation Amount
of
the Trust Securities, such rate being the rate of interest payable on the Notes.
LIBOR shall be determined by the Calculation Agent in accordance with
Schedule
A
.
The
amount of Distributions payable for any Distribution period shall be computed
and paid on the basis of a 360-day year and the actual number of days elapsed
in
the relevant Distribution period. The amount of Distributions payable for any
period shall include any Additional Interest Amounts in respect of such period;
and
(iv)
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b)
Distributions
on the Trust Securities with respect to a Distribution Date shall be payable
to
the Holders thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date, which shall
be
at the close of business on the fifteenth day (whether or not a Business Day)
preceding the relevant Distribution Date. Distributions payable on any Trust
Securities that are not punctually paid on any Distribution Date as a result
of
the Depositor having failed to make an interest payment under the Notes will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distributions and
any
Additional Interest Amounts will instead be payable to the Person in whose
name
such Trust Securities are registered on the special record date, or other
specified date for determining Holders entitled to such defaulted Distribution
and Additional Interest Amount, established in the same manner, and on the
same
date, as such is established with respect to the Notes under the
Indenture.
SECTION
4.2.
Redemption.
(a)
On
each
Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in
respect of) which any principal on the Notes is repaid, the Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b)
Notice
of
redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior
to
the Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder’s address appearing in the Securities Register. All notices of redemption
shall state:
(i)
the
Redemption Date;
(ii)
the
Redemption Price or, if the Redemption Price cannot be calculated prior to
the
time the notice is required to be sent, the estimate of the Redemption Price
provided pursuant to the Indenture, as calculated by the Depositor, together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated by the Calculation Agent on the fifth Business Day prior
to
the Redemption Date (and if an estimate is provided, a further notice shall
be
sent of the actual Redemption Price on the date that such Redemption Price
is
calculated);
(iii)
if
less
than all the Outstanding Trust Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective Liquidation Amounts)
and
Liquidation Amounts of the particular Trust Securities to be
redeemed;
(iv)
that
on
the Redemption Date, the Redemption Price will become due and payable upon
each
such Trust Security, or portion thereof, to be redeemed and that Distributions
thereon will cease to accumulate on such Trust Security or such portion, as
the
case may be, on and after said date, except as provided in
Section
4.2(d)
;
(v)
the
place
or places where the Trust Securities are to be surrendered for the payment
of
the Redemption Price; and
(vi)
such
other provisions as the Property Trustee deems relevant.
(c)
The
Trust
Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Notes. Redemptions of the Trust Securities
(or portion thereof) shall be made and the Redemption Price shall be payable
on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
Under the Indenture, the Notes may be redeemed by the Depositor on any Interest
Payment Date, at the Depositor’s option, on or after January 30, 2012, in whole
or in part, from time to time at a redemption price equal to one hundred percent
(100%) of the principal amount thereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption (the “Indenture Redemption Price”);
provided, that the Depositor shall have received the prior approval of the
Federal Reserve if then required. The Notes may also be redeemed by the
Depositor, at its option, at any time, in whole but not in part, upon the
occurrence of a Capital Disqualification Event, an Investment Company Event
or a
Tax Event at the Special Event Redemption Price (as set forth in the Indenture);
provided, that the Depositor shall have received the prior approval of the
Federal Reserve if then required.
(d)
If
the
Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption Date,
the
Depositor shall deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made by such time, then by 12:00
noon, New York City time, on the Redemption Date, the Property Trustee will,
with respect to Book-Entry Preferred Securities, irrevocably deposit with the
Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give
such Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of
the
Preferred Securities. With respect to Preferred Securities that are not
Book-Entry Preferred Securities, the Property Trustee will irrevocably deposit
with the Paying Agent, to the extent available therefor, funds sufficient to
pay
the applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities (or portion thereof) called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of Holders
holding Trust Securities (or portion thereof) so called for redemption will
cease, except the right of such Holders to receive the Redemption Price and
any
Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and, in the case of a partial redemption,
the right of such Holders to receive a new Trust Security or Securities of
authorized denominations, in aggregate Liquidation Amount equal to the
unredeemed portion of such Trust Security or Securities, and such Securities
(or
portion thereof) called for redemption will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on
the next succeeding Business Day (and no interest shall accrue in respect of
the
amounts whose payment is so delayed for the period from and after each such
date
until the next succeeding Business Day), except that, if such Business Day
falls
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price
in
respect of any Trust Securities (or portion thereof) called for redemption
is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such Trust
Securities (or portion thereof) will continue to accumulate, as set forth in
Section
4.1
,
from
the Redemption Date originally established by the Trust for such Trust
Securities (or portion thereof) to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e)
Subject
to
Section
4.3
(a),
if
less than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust Securities
to be
redeemed shall be allocated pro rata to the Common Securities and the Preferred
Securities based upon the relative aggregate Liquidation Amounts of the Common
Securities and the Preferred Securities. The Preferred Securities to be redeemed
shall be selected on a pro rata basis based upon their respective Liquidation
Amounts not more than sixty (60) days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption; provided, however, that with respect to Holders that would
be
required to hold less than one hundred (100) but more than zero (0) Trust
Securities as a result of such redemption, the Trust shall redeem Trust
Securities of each such Holder so that after such redemption such Holder shall
hold either one hundred (100) Trust Securities or such Holder no longer holds
any Trust Securities, and shall use such method (including, without limitation,
by lot) as the Trust shall deem fair and appropriate; and provided, further,
that so long as the Preferred Securities are Book-Entry Preferred Securities,
such selection shall be made in accordance with the Applicable Depositary
Procedures for the Preferred Securities by such Depositary. The Property Trustee
shall promptly notify the Securities Registrar in writing of the
Preferred
Securities (or portion thereof) selected for redemption and, in the case of
any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
(f)
The
Trust
in issuing the Trust Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders; provided, that any such notice may state that no representation
is
made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related
materials.
SECTION
4.3.
Subordination
of Common Securities.
(a)
Payment
of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made, pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the respective Trust
Securities; provided, that if on any Distribution Date, Redemption Date or
Liquidation Date an Event of Default shall have occurred and be continuing,
no
payment of any Distribution (including any Additional Interest Amounts) on,
Redemption Price of or Liquidation Distribution in respect of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full
in
cash of all accumulated and unpaid Distributions (including any Additional
Interest Amounts) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, or in the case of payment
of
the Liquidation Distribution the full amount of such Liquidation Distribution
on
all Outstanding Preferred Securities, shall have been made or provided for,
and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of or the Liquidation Distribution
in respect of, the Preferred Securities then due and payable.
(b)
In
the
case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default
under this Trust Agreement until all such Events of Default with respect to
the
Preferred Securities have been cured, waived or otherwise eliminated. Until
all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holders of the Common Securities, and only the Holders
of all the Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
SECTION
4.4.
Payment
Procedures.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account
at a
banking institution in the United States as may be designated in writing at
least ten (10) Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions have not been
received by the relevant record date, in which case such payments shall be
made
by check mailed to the address of such Person as such address shall appear
in
the Securities Register. If any Preferred Securities are held by a Depositary,
such Distributions thereon shall be made to the Depositary in immediately
available funds. Payments in respect of the Common Securities shall be made
in
such manner as shall be mutually agreed between the Property Trustee and the
Holder of all the Common Securities.
SECTION
4.5.
Withholding
Tax.
The
Trust
and the Administrative Trustees shall comply with all withholding and backup
withholding tax requirements under United States federal, state and local law.
The Administrative Trustees on behalf of the Trust shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding and backup withholding tax with
respect to each Holder and any representations and forms as shall reasonably
be
requested by the Administrative Trustees on behalf of the Trust to assist it
in
determining the extent of, and in fulfilling, its withholding and backup
withholding tax obligations. The Administrative Trustees shall file required
forms with applicable jurisdictions and, unless an exemption from withholding
and backup withholding tax is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To
the
extent that the Trust is required to withhold and pay over any amounts to any
jurisdiction 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
Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION
4.6.
Tax
Returns and Other Reports.
(a)
The
Administrative Trustees shall prepare (or cause to be prepared) at the principal
office of the Trust in the United States, as defined for purposes of Treasury
regulations section 301.7701-7, at the Depositor’s expense, and file, all United
States federal, state and local tax and information returns and reports required
to be filed by or in respect of the Trust. The Administrative Trustees shall
prepare at the principal office of the Trust in the United States, as defined
for purposes of Treasury regulations section 301.7701-7, and furnish (or cause
to be prepared and furnished), by January 31 in each taxable year of the Trust
to each Holder all Internal Revenue Service forms and returns required to be
provided by the Trust. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing.
(b)
So
long
as the Property Trustee is the holder of the Notes, the Administrative Trustees
shall furnish to the Property Trustee (i) the Depositor’s reports on Federal
Reserve form FR Y-9C, FR Y-9LP and FR Y-6 promptly following their filing with
the Federal Reserve, or (ii) if the Depositor is no longer required to file
the
reports set forth in (i) above, such other similar reports as the Depositor
may
be required to file at such time with the Depositor’s primary federal banking
regulator promptly following their filing with such banking
regulator.
SECTION
4.7.
Payment
of Taxes, Duties, Etc. of the Trust.
Upon
receipt under the Notes of Additional Tax Sums and upon the written direction
of
the Administrative Trustees, the Property Trustee shall promptly pay, solely
out
of monies on deposit pursuant to this Trust Agreement, any Additional Taxes
imposed on the Trust by the United States or any other taxing
authority.
SECTION
4.8.
Payments
under Indenture or Pursuant to Direct Actions.
Any
amount payable hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder (or any Owner with
respect thereto) has directly received pursuant to
Section
5.8
of the
Indenture or
Section
6.10(b)
of this
Trust Agreement.
SECTION
4.9.
Exchanges.
(a)
If
at any
time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliate”) is the Owner or Holder of any Preferred Securities, such Depositor
Affiliate shall have the right to deliver to the Property Trustee all or such
portion of its Preferred Securities as it elects and, subject to compliance
with
Sections
2.2
and
3.5
of the
Indenture, receive, in exchange therefor, a Like Amount of Notes. Such election
(i) shall be exercisable effective on any Distribution Date by such Depositor
Affiliate delivering to the Property Trustee a written notice of such election
specifying the Liquidation Amount of Preferred Securities with respect to which
such election is being made and the Distribution Date on which such exchange
shall occur, which Distribution Date shall be not less than ten (10) Business
Days after the date of receipt by the Property Trustee of such election notice
and (ii) shall be conditioned upon such Depositor Affiliate having delivered
or
caused to be delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 A.M. New York time,
on
the Distribution Date on which such exchange is to occur. After the exchange,
such Preferred Securities will be canceled and will no longer be deemed to
be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
(b)
In
the
case of an exchange described in
Section
4.9(a)
,
the
Property Trustee on behalf of the Trust will, on the date of such exchange,
exchange Notes having a principal amount equal to a proportional amount of
the
aggregate Liquidation Amount of the Outstanding Common Securities, based on
the
ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged
pursuant to
Section
4.9(a)
divided
by the aggregate Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount of Common
Securities held by the Depositor (which contemporaneously shall be canceled
and
no longer be deemed to be Outstanding); provided, that the Depositor delivers
or
causes
to
be delivered to the Property Trustee or its designee the required amount of
Common Securities to be exchanged by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur.
SECTION
4.10.
Calculation
Agent.
(a)
The
Property Trustee shall initially, and, subject to the immediately following
sentence, for so long as it holds any of the Notes, be the Calculation Agent
for
purposes of determining LIBOR for each Distribution Date. The Calculation Agent
may be removed by the Administrative Trustees at any time. If the Calculation
Agent is unable or unwilling to act as such or is removed by the Administrative
Trustees, the Administrative Trustees will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in
transactions in three-month U.S. dollar deposits in Europe and which does not
control or is not controlled by or under common control with the Administrative
Trustee or its Affiliates. The Calculation Agent may not resign its duties
without a successor having been duly appointed.
(b)
The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date, but in no event
later
than 11:00 a.m. (London time) on the Business Day immediately following each
LIBOR Determination Date, the Calculation Agent will calculate the interest
rate
and dollar amount (rounded to the nearest cent, with half a cent being rounded
upwards) for the related Distribution Date, and will communicate such rate
and
amount to the Depositor, the Property Trustee, each Paying Agent and the
Depositary. The Calculation Agent will also specify to the Administrative
Trustees the quotations upon which the foregoing rates and amounts are based
and, in any event, the Calculation Agent shall notify the Administrative
Trustees before 5:00 p.m. (London time) on each LIBOR Determination Date that
either: (i) it has determined or is in the process of determining the foregoing
rates and amounts or (ii) it has not determined and is not in the process of
determining the foregoing rates and amounts, together with its reasons therefor.
The Calculation Agent’s determination of the foregoing rates and amounts for any
Distribution Date will (in the absence of manifest error) be final and binding
upon all parties. For the sole purpose of calculating the interest rate for
the
Trust Securities, “Business Day” shall be defined as any day on which dealings
in deposits in Dollars are transacted in the London interbank
market.
SECTION
4.11.
Certain
Accounting Matters.
(a)
At
all
times during the existence of the Trust, the Administrative Trustees 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
on the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied.
(b)
The
Administrative Trustees shall either (i) if the Depositor is then subject to
such reporting requirements, cause each Form 10-K and Form 10-Q prepared by
the
Depositor and filed with the Commission in accordance with the Exchange Act
to
be delivered to each Holder, with a copy to the Property Trustee, within thirty
(30) days after the filing thereof or (ii) cause to be prepared at the principal
office of the Trust in the United States, as defined for purposes
of
Treasury
Regulations section 301.7701-7, and delivered to each of the Holders, with
a
copy to the Property Trustee, within ninety (90) days after the end of each
Fiscal Year, annual financial statements of the Trust, including a balance
sheet
of the Trust as of the end of such Fiscal Year, and the related statements
of
income or loss.
(c)
The
Trust
shall maintain one or more bank accounts in the United States, as defined for
purposes of Treasury Regulations section 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 Notes held by the Property Trustee
shall
be made directly to the Payment Account and no other funds of the Trust shall
be
deposited in the Payment Account. The sole signatories for such accounts
(including the Payment Account) shall be designated by the Property
Trustee.
ARTICLE
V.
SECURITIES
SECTION
5.1.
Initial
Ownership.
Upon
the
creation of the Trust and the contribution by the Depositor referred to in
Section
2.3
and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION
5.2.
Authorized
Trust Securities.
The
Trust
shall be authorized to issue one series of Preferred Securities having an
aggregate Liquidation Amount of $12,000,000 and one series of Common Securities
having an aggregate Liquidation Amount of $372,000.
SECTION
5.3.
Issuance
of the Common Securities; Subscription and Purchase of Notes.
On
the
Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute
and deliver to the Depositor Common Securities Certificates, registered in
the
name of the Depositor, evidencing an aggregate of 372 Common Securities having
an aggregate Liquidation Amount of $372,000, against receipt by the Trust of
the
aggregate purchase price of such Common Securities of $372,000.
Contemporaneously therewith and with the sale by the Trust to the Holders of
an
aggregate of 12,000 Preferred Securities having an aggregate Liquidation Amount
of $12,000,000, an Administrative Trustee, on behalf of the Trust, shall
subscribe for and purchase from the Depositor Notes, to be registered in the
name of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to $12,372,000, and, in satisfaction of the purchase
price for such Notes, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $12,372,000 (being the aggregate amount
paid
by the Holders for the Preferred Securities and the amount paid by the Depositor
for the Common Securities).
SECTION
5.4.
The
Securities Certificates.
(a)
The
Preferred Securities Certificates shall be issued in minimum denominations
of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000 in excess
thereof. The Securities Certificates shall be executed on behalf of the Trust
by
manual or facsimile signature of at least one Administrative Trustee. Securities
Certificates bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign such Securities
Certificates on behalf of the Trust shall be validly issued and entitled to
the
benefits of this Trust Agreement, notwithstanding that such individuals or
any
of them shall have ceased to be so authorized prior to the delivery of such
Securities Certificates or did not have such authority at the date of delivery
of such Securities Certificates.
(b)
On
the
Closing Date, upon the written order of an authorized officer of the Depositor,
the Administrative Trustees shall cause Securities Certificates to be executed
on behalf of the Trust and delivered, without further corporate action by the
Depositor, in authorized denominations.
(c)
Preferred
Securities issued on the Closing Date to QIBs shall be issued as directed by
the
Purchaser on or prior to the Closing Date, either (i) in the form of one or
more
Global Preferred Securities or (ii) in the form of one or more Definitive
Preferred Securities Certificates. Global Preferred Securities shall be, except
as provided in
Section 5.6
,
Book-Entry Preferred Securities registered in the name of the Depositary, or
its
nominee and deposited with the Depositary or the Property Trustee as custodian
for the Depositary for credit by the Depositary to the respective accounts
of
the Depositary Participants thereof (or such other accounts as they may direct).
The Preferred Securities issued to a Person other than a QIB shall be issued
in
the form of Definitive Preferred Securities Certificates.
(d)
A
Preferred Security shall not be valid until authenticated by the manual
signature of a Responsible Officer of the Property Trustee. Such signature
shall
be conclusive evidence that the Preferred Security has been authenticated under
this Trust Agreement. Upon written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate and deliver
one
or more Preferred Security Certificates evidencing the Preferred Securities
for
original issue. The Property Trustee may appoint an authenticating agent that
is
a U.S. Person acceptable to the Trust to authenticate the Preferred Securities.
A Common Security need not be so authenticated and shall be valid upon execution
by one or more Administrative Trustees. The form of this certificate of
authentication can be found in
Section 5.13
.
(e)
Upon
issuance of the Trust Securities as provided in this Trust Agreement, the Trust
Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable, and each Holder thereof shall be entitled to the benefits
provided by this Trust Agreement.
SECTION
5.5.
Rights
of
Holders.
The
Trust
Securities shall have no, and the issuance of the Trust Securities is not
subject to, preemptive or similar rights and when issued and delivered to
Holders against payment of the
purchase
price therefor will be fully paid and non-assessable by the Trust. Except as
provided in
Section
5.11(b)
,
the
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State
of Delaware.
SECTION
5.6.
Book-Entry
Preferred Securities.
(a)
A
Global
Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only
if
such exchange complies with
Section
5.7
and (i)
the Depositary advises the Administrative Trustees and the Property Trustee
in
writing that the Depositary is no longer willing or able properly to discharge
its responsibilities with respect to the Global Preferred Security, and no
qualified successor is appointed by the Administrative Trustees 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 Administrative Trustees fail
to
appoint a qualified successor within ninety (90) days of obtaining knowledge
of
such event, (iii) the Administrative Trustees at their option advise the
Property Trustee in writing that the Trust elects to terminate the book-entry
system through the Depositary or (iv) a Note Event of Default has occurred
and
is continuing. Upon the occurrence of any event specified in clause (i), (ii),
(iii) or (iv) above, the Administrative Trustees shall notify the Depositary
and
instruct the Depositary to notify all Owners of Book-Entry Preferred Securities,
the Delaware Trustee and the Property Trustee of the occurrence of such event
and of the availability of the Definitive Preferred Securities Certificates
to
Owners of the Preferred Securities requesting the same. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize
the
Holders of the Definitive Preferred Securities Certificates as Holders.
Notwithstanding the foregoing, if an Owner of a beneficial interest in a Global
Preferred Security wishes at any time to transfer an interest in such Global
Preferred Security to a Person other than a QIB, such transfer shall be
effected, subject to the Applicable Depositary Procedures, in accordance with
the provisions of this
Section
5.6
and
Section
5.7
,
and the
transferee shall receive a Definitive Preferred Securities Certificate in
connection with such transfer. A holder of a Definitive Preferred Securities
Certificate that is a QIB may, upon request, and in accordance with the
provisions of this
Section
5.6
and
Section
5.7
,
exchange such Definitive Preferred Securities Certificate for a beneficial
interest in a Global Preferred Security.
(b)
If
any
Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities
Certificate is to be exchanged in whole or in part for any Global Preferred
Security, then either (i) such Global Preferred Security shall be so surrendered
for exchange or cancellation as provided in this
Article V
or (ii)
the aggregate Liquidation Amount represented by such Global Preferred Security
shall be reduced, subject to
Section
5.4
,
or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Preferred Security to be so exchanged or canceled, or
equal to the Liquidation Amount represented by such Definitive Preferred
Securities Certificates to be so exchanged for any Global Preferred Security,
as
the case may be, by means of an appropriate adjustment made on the records
of
the Securities Registrar, whereupon the Property 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 to the Administrative Trustees or the Securities
Registrar of any Global Preferred Security or Securities by the
Depositary,
accompanied
by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Depositary, and the Property Trustee, upon receipt
thereof, shall authenticate and deliver such Definitive Preferred Securities
Certificates. None of the Securities Registrar or the Trustees shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be fully protected in relying on, such instructions.
(c)
Every
Securities Certificate executed and delivered upon registration of transfer
of,
or in exchange for or in lieu of, a Global Preferred Security or any portion
thereof shall be executed and delivered in the form of, and shall be, a Global
Preferred Security, unless such Securities Certificate is registered in the
name
of a Person other than the Depositary for such Global Preferred Security or
a
nominee thereof.
(d)
The
Depositary or its nominee, as registered owner of a Global Preferred Security,
shall be the Holder of such Global Preferred Security for all purposes under
this Trust Agreement and the Global Preferred Security, and Owners with respect
to a Global Preferred Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Securities Registrar and the Trustees
shall be entitled to deal with the Depositary for all purposes of this Trust
Agreement relating to the Global Preferred Securities (including the payment
of
the Liquidation Amount of and Distributions on the Book-Entry Preferred
Securities represented thereby and the giving of instructions or directions
by
Owners of Book-Entry Preferred Securities represented thereby and the giving
of
notices) as the sole Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof. None of the
Trustees nor the Securities Registrar shall have any liability in respect of
any
transfers effected by the Depositary.
(e)
The
rights of the Owners of the Book-Entry Preferred 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 Owners and
the
Depositary and/or the Depositary Participants; provided, that, solely for the
purpose of determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Trust Agreement, to
the
extent that Preferred Securities are represented by a Global Preferred Security,
the Trustees may conclusively rely on, and shall be fully protected in relying
on, any written instrument (including a proxy) delivered to the Property Trustee
by the Depositary setting forth the 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 Preferred Securities are represented by a Global Preferred Security, the
Depositary will make book-entry transfers among the Depositary Participants
and
receive and transmit payments on the Preferred Securities that are represented
by a Global Preferred Security to such Depositary Participants, and none of
the
Depositor or the Trustees 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 Trust Agreement, for so long as Preferred Securities are represented by
a
Global Preferred Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations to the
Owners.
SECTION
5.7.
Registration
of Transfer and Exchange of Preferred Securities Certificates.
(a)
The
Property Trustee shall keep or cause to be kept, at the Corporate Trust Office,
a register or registers (the “Securities Register”) in which the registrar and
transfer agent with respect to the Trust Securities (the “Securities
Registrar”), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Property Trustee shall at all
times also be the Securities Registrar. The provisions of
Article
VIII
shall
apply to the Property Trustee in its role as Securities Registrar.
(b)
Subject
to
Section
5.7(d)
,
upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to
Section
5.7(f)
,
the
Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and upon receipt thereof the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities Certificates
in
authorized denominations of a like aggregate Liquidation Amount as may be
required by this Trust Agreement dated the date of execution by such
Administrative Trustee or Trustees. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificate to be exchanged
at
the office or agency maintained pursuant to
Section 5.7(f)
.
Whenever any Preferred Securities Certificates are so surrendered for exchange,
the Administrative Trustees or any one of them shall execute by manual or
facsimile signature and deliver to the Property Trustee, and upon receipt
thereof the Property Trustee shall authenticate and deliver, the Preferred
Securities Certificates that the Holder making the exchange is entitled to
receive.
(c)
The
Securities Registrar shall not be required, (i) to issue, register the transfer
of or exchange any Preferred Security during a period beginning at the opening
of business fifteen (15) days before the day of selection for redemption of
such
Preferred Securities pursuant to
Article
IV
and
ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Preferred
Security so selected for redemption in whole or in part, except, in the case
of
any such Preferred Security to be redeemed in part, any portion thereof not
to
be redeemed.
(d)
Every
Preferred Securities Certificate presented or surrendered for registration
of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder’s attorney duly authorized in writing and
(i) if such Preferred Securities Certificate is being transferred otherwise
than
to a QIB, accompanied by a certificate of the transferee substantially in the
form set forth as
Exhibit
E
hereto
or (ii) if such Preferred Securities Certificate is being transferred to a QIB,
accompanied by a certificate of the transferor substantially in the form set
forth as
Exhibit
F
hereto.
(e)
No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, but the Property Trustee on behalf of the
Trust may require
payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Preferred Securities
Certificates.
(f)
The
Administrative Trustees shall designate an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange, and initially designate the Corporate
Trust Office as its office and agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor, the Property Trustee
and to the Holders of any change in the location of any such office or
agency.
(g)
With
respect to Preferred Securities issued to QIBs in the form of one or more
Definitive Preferred Securities Certificates as provided in Section 5.4(c),
and
any subsequent transfers thereof, the Depositor and the Trust shall use all
commercially reasonable efforts to make such Preferred Securities eligible
for
clearance and settlement as Book-Entry Preferred Securities through the
facilities of the Depositary and listed for trading through the PORTAL Market,
and will execute, deliver and comply with all representations made to, and
agreements with, the Depositary and the PORTAL Market in connection
therewith.
SECTION
5.8.
Mutilated,
Destroyed, Lost or Stolen Securities Certificates.
(a)
If
any
mutilated Securities Certificate shall be surrendered to the Securities
Registrar together with such security or indemnity as may be required by the
Securities Registrar and the Administrative Trustees to save each of them
harmless, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery and, with respect to
Preferred Securities, the Property Trustee shall authenticate, in exchange
therefor a new Securities Certificate of like class, tenor and
denomination.
(b)
If
the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Securities Certificate and there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Securities Certificate shall have been
acquired by a protected purchaser, the Administrative Trustees, or any one
of
them, on behalf of the Trust, shall execute and make available for delivery,
and, with respect to Preferred Securities, the Property Trustee shall
authenticate, in exchange for or in lieu of any such destroyed, lost or stolen
Securities Certificate, a new Securities Certificate of like class, tenor and
denomination.
(c)
In
connection with the issuance of any new Securities Certificate under this
Section
5.8
,
the
Administrative Trustees or the Securities Registrar may require the payment
of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
(d)
Any
duplicate Securities Certificate issued pursuant to this
Section
5.8
shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Trust corresponding to that evidenced by the mutilated, lost, stolen
or
destroyed Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Securities Certificate shall be found at any
time.
(e)
If
any
such mutilated, destroyed, lost or stolen Securities Certificate has become
or
is about to become due and payable, the Depositor in its discretion may, instead
of issuing a new Trust Security, pay such Trust Security.
(f)
The
provisions of this
Section
5.8
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, destroyed, lost or stolen
Securities Certificates.
SECTION
5.9.
Persons
Deemed Holders.
The
Trustees and the Securities Registrar shall each treat the Person in whose
name
any Securities Certificate shall be registered in the Securities Register as
the
owner of the Trust Securities evidenced by such Securities Certificate for
the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Trustees and the Securities Registrar shall be bound by any notice
to the contrary.
SECTION
5.10.
Cancellation.
All
Preferred Securities Certificates surrendered for registration of transfer
or
exchange or for payment shall, if surrendered to any Person other than the
Property Trustee, be delivered to the Property Trustee, and any such Preferred
Securities Certificates and Preferred Securities Certificates surrendered
directly to the Property Trustee for any such purpose shall be promptly canceled
by it. The Administrative Trustees may at any time deliver to the Property
Trustee for cancellation any Preferred Securities Certificates previously
delivered hereunder that the Administrative Trustees may have acquired in any
manner whatsoever, and all Preferred Securities Certificates so delivered shall
be promptly canceled by the Property Trustee. No Preferred Securities
Certificates shall be executed and delivered in lieu of or in exchange for
any
Preferred Securities Certificates canceled as provided in this
Section
5.10
,
except
as expressly permitted by this Trust Agreement. All canceled Preferred
Securities Certificates shall be disposed of by the Property Trustee in
accordance with its customary practices and the Property Trustee shall deliver
to the Administrative Trustees a certificate of such disposition.
SECTION
5.11.
Ownership
of Common Securities by Depositor.
(a)
On
the
Closing Date, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all
the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger
of
the Depositor into another Person, or any conveyance, transfer or lease by
the
Depositor of its properties and assets substantially as an entirety to any
Person (in which event such Common Securities will be transferred to such
surviving entity, transferee or lessee, as the case may be), pursuant to
Section
8.1
of the
Indenture or (ii) to the Depositor or an Affiliate of the Depositor, in each
such case in compliance with applicable law (including the Securities Act,
and
applicable state securities and blue sky laws). To the fullest extent permitted
by law, any attempted transfer of the Common Securities other than as set forth
in the immediately preceding sentence shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the
Depositor
to
contain a legend stating substantially “THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT.”
(b)
Any
Holder of the Common Securities shall be liable for the debts and obligations
of
the Trust in the manner and to the extent set forth herein with respect to
the
Depositor and agrees that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder, shall deliver
to
the Administrative Trustees an instrument of assumption satisfactory to such
Trustees.
SECTION
5.12.
Restricted
Legends
.
(a)
Each
Preferred Security Certificate shall bear a legend in substantially the
following form:
“[
IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST
AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER
OF
THIS PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
HORIZON BANCORP CAPITAL TRUST III
OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
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.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS
HEREBY
NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF RULE 144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF AN “ACCREDITED INVESTOR,” WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, 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, IN EACH CASE IN ACCORDANCE
WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND, IN THE CASE OF (III), SUBJECT TO THE RIGHT OF
THE
TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL ADDRESSING COMPLIANCE
WITH THE U.S. SECURITIES LAWS, AND OTHER INFORMATION SATISFACTORY TO EACH OF
THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS
THAN
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, 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 PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER SECTION
408(b)(17) OF ERISA, 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 ANY INTEREST THEREIN, ARE NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THE PREFERRED 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 OR OTHER
PLAN
TO WHICH TITLE I OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE
OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN,
OR
ANY OTHER PERSON OR ENTITY USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL
NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
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.”
(b)
The
above
legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor satisfactory
evidence, which may include an Opinion of Counsel, as may be reasonably required
to ensure that any future transfers thereof may be made without restriction
under or violation of the provisions of the Securities Act and other applicable
law. Upon provision of such satisfactory evidence, one or more of the
Administrative Trustees on behalf of the Trust shall execute and deliver to
the
Property Trustee, and the Property Trustee shall authenticate and deliver,
at
the written direction of the Administrative Trustees and the Depositor,
Preferred Securities Certificates that do not bear the legend.
SECTION
5.13.
Form
of
Certificate of Authentication.
The
Property Trustee’s certificate of authentication shall be in substantially the
following form:
This
represents Preferred Securities referred to in the within-mentioned Trust
Agreement.
Dated:
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WILMINGTON
TRUST COMPANY
,
not in its individual capacity, but solely as Property
Trustee
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By:
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Authorized
officer
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ARTICLE
VI.
MEETINGS;
VOTING; ACTS OF HOLDERS
SECTION
6.1.
Notice
of
Meetings.
Notice
of
all meetings of the Holders of the Preferred Securities, stating the time,
place
and purpose of the meeting, shall be given by the Property Trustee pursuant
to
Section
11.8
to each
Holder of Preferred Securities, at such Holder’s registered address, at least
fifteen (15) days and not more than ninety (90) days before the meeting. At
any
such meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting may
be
held as adjourned without further notice.
SECTION
6.2.
Meetings
of Holders of the Preferred Securities.
(a)
No
annual
meeting of Holders is required to be held. The Property Trustee, however, shall
call a meeting of the Holders of the Preferred Securities to vote on any matter
upon the written request of the Holders of at least twenty five percent (25%)
in
aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote
on
any matters as to which such Holders are entitled to vote.
(b)
The
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
(c)
If
a
quorum is present at a meeting, an affirmative vote by the Holders present,
in
person or by proxy, holding Preferred Securities representing at least a
Majority in Liquidation Amount of the Preferred Securities held by the Holders
present, either in person or by proxy, at such meeting shall constitute the
action of the Holders of the Preferred Securities, unless this Trust Agreement
requires a lesser or greater number of affirmative votes.
SECTION
6.3.
Voting
Rights.
Holders
shall be entitled to one vote for each $10,000 of Liquidation Amount represented
by their Outstanding Trust Securities in respect of any matter as to which
such
Holders are entitled to vote.
SECTION
6.4.
Proxies,
Etc.
At
any
meeting of Holders, any Holder entitled to vote thereat may vote by proxy,
provided, that no proxy shall be voted at any meeting unless it shall have
been
placed on file with the Administrative Trustees, or with such other officer
or
agent of the Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution
of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies
so
present disagree as to any vote to be cast, such vote shall not be received
in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
No
proxy shall be valid more than three years after its date of
execution.
SECTION
6.5.
Holder
Action by Written Consent.
Any
action that may be taken by Holders at a meeting may be taken without a meeting
and without prior notice if Holders holding at least a Majority in Liquidation
Amount of all Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be required by any other
provision of this Trust Agreement) shall consent to the action in writing;
provided, that notice of such action is promptly provided to the Holders of
Preferred Securities that did not consent to such action. Any action that may
be
taken by the Holders of all the Common Securities may be taken without a meeting
and without prior notice if such Holders shall consent to the action in
writing.
SECTION
6.6.
Record
Date for Voting and Other Purposes.
Except
as
provided in
Section
6.10(a)
,
for the
purposes of determining the Holders who are entitled to notice of and to vote
at
any meeting or to act by written consent, or to participate in any distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than
ninety (90) days prior to the date of any meeting of Holders or the payment
of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such
purposes.
SECTION
6.7.
Acts
of
Holders.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
thereof duly appointed in writing; and, except as
otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of
a writing appointing any such agent shall be sufficient for any purpose of
this
Trust Agreement and conclusive in favor of the Trustees, if made in the manner
provided in this
Section
6.7
.
(b)
The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Trustee receiving the same deems sufficient.
(c)
The
ownership of Trust Securities shall be proved by the Securities
Register.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Trust Security shall bind every future Holder of the same
Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in
respect of anything done, omitted or suffered to be done by the Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e)
Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or
any
part of the Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such Liquidation Amount.
(f)
If
any
dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, notice, consent, waiver or other Act of such Holder or Trustee under
this
Article
VI
,
then
the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION
6.8.
Inspection
of Records.
Upon
reasonable written notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by any Holder
during normal business hours for any purpose reasonably related to such Holder’s
interest as a Holder.
SECTION
6.9.
Limitations
on Voting Rights.
(a)
Except
as
expressly provided in this Trust Agreement and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to
vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Securities Certificates, be
construed so as to constitute the Holders from time to time as partners or
members of an association.
(b)
So
long
as any Notes are held by the Property Trustee on behalf of the Trust, the
Property Trustee shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Note Trustee, or exercise any
trust or power conferred on the Property Trustee with respect to the Notes,
(ii)
waive any past default that may be waived under
Section
5.13
of the
Indenture, (iii) exercise any right to rescind or annul a declaration that
the
principal of all the Notes shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Notes, where
such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities; provided, that where a consent under the Indenture would require
the
consent of each holder of Notes (or each Holder of Preferred Securities)
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred Securities. The Property
Trustee shall not revoke any action previously authorized or approved by a
vote
of the Holders of the Preferred Securities, except by a subsequent vote of
the
Holders of the Preferred Securities. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of
the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that
such
action shall not cause the Trust to be taxable as a corporation or classified
as
other than a grantor trust for United States federal income tax
purposes.
(c)
If
any
proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any
material respect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise
or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class 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
Preferred Securities. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result
of
such amendment, it would cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes.
SECTION
6.10.
Acceleration
of Maturity; Rescission of Annulment; Waivers of Past Defaults.
(a)
For
so
long as any Preferred Securities remain Outstanding, if, upon a Note Event
of
Default pursuant to paragraphs
(c)
,
(e)
,
(f)
,
(g)
or
(h)
of
Section
5.1
of the
Indenture, the Note Trustee fails or the holders of not less than twenty five
percent (25%) in principal amount of the outstanding Notes fail to declare
the
principal of all of the Notes to be immediately due and payable, the Holders
of
at least twenty-five percent (25%) in Liquidation Amount of the
Preferred
Securities then Outstanding shall have the right to make such declaration by
a
notice in writing to the Property Trustee, the Depositor and the Note Trustee.
At any time after a declaration of acceleration with respect to the Notes has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Note Trustee as provided in the Indenture, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Note Trustee, may rescind
and annul such declaration and its consequences if:
(i)
the
Depositor has paid or deposited with the Note Trustee a sum sufficient to
pay:
(A)
all
overdue installments of interest on all of the Notes;
(B)
any
accrued Additional Interest on all of the Notes;
(C)
the
principal of and premium, if any, on any Notes that have become due otherwise
than by such declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Notes; and
(D)
all
sums
paid or advanced by the Note Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Note Trustee, the
Property Trustee and their agents and counsel; and
(ii)
all
Note
Events of Default, other than the non-payment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in
Section
5.13
of the
Indenture.
Upon
receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment,
as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is ninety (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 ninety (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
6.10(a)
.
(b)
For
so
long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Note Event of Default specified in paragraph (a), (b) or
(c)
of
Section
5.1
of the
Indenture, any Holder of Preferred Securities shall have the right to institute
a proceeding directly against the
Depositor,
pursuant to
Section
5.8
of the
Indenture, for enforcement of payment to such Holder of any amounts payable
in
respect of Notes having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such Holder. Except as set
forth in
Section 6.10(a)
and this
Section
6.10(b)
,
the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the
Notes.
(c)
Notwithstanding
paragraphs (a) and (b) of this
Section
6.10
,
the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any Note
Event of Default, except any Note Event of Default arising from the failure
to
pay any principal of or premium, if any, or interest on (including any
Additional Interest) the Notes (unless such Note Event of Default has been
cured
and a sum sufficient to pay all matured installments of interest and all
principal and premium, if any, on all Notes due otherwise than by acceleration
has been deposited with the Note Trustee) or a Note 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 Note. Upon any
such waiver, such Note Event of Default shall cease to exist and any Note Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of the Indenture; but no such waiver shall affect any subsequent Note
Event of Default or impair any right consequent thereon.
(d)
Notwithstanding
paragraphs (a) and (b) of this
Section
6.10
and
subject to paragraph (c), the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any Event of Default and its consequences. Upon
such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of
this
Trust Agreement, but no such waiver shall extend to any subsequent or other
Event of Default or impair any right consequent thereon.
(e)
The
Holders of a Majority in Liquidation Amount of the Preferred Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee in respect of this Trust
Agreement or the Notes or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement; provided, that, subject to
Sections
8.5
and
8.7
,
the
Property Trustee shall have the right to decline to follow any such direction
if
the Property Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Property Trustee in good faith
shall, by an officer or officers of the Property Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability
or
be unduly prejudicial to the rights of Holders not party to such direction,
and
provided, further, that nothing in this Trust Agreement shall impair the right
of the Property Trustee to take any action deemed proper by the Property Trustee
and which is not inconsistent with such direction.
ARTICLE
VII.
REPRESENTATIONS
AND WARRANTIES
SECTION
7.1.
Representations
and Warranties of the Property Trustee and the Delaware Trustee.
The
Property Trustee and the Delaware Trustee, each severally on behalf of and
as to
itself, hereby represents and warrants for the benefit of the Depositor and
the
Holders that:
(a)
the
Property Trustee is a Delaware banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the State
of
Delaware;
(b)
the
Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(c)
the
Delaware Trustee is a Delaware banking corporation, duly organized with trust
powers, validly existing and in good standing under the laws of the State of
Delaware and with its principal place of business in the State of
Delaware;
(d)
the
Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(e)
this
Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the legal, valid and binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency and 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);
(f)
the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee or (ii) violate any applicable
law, governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the banking and trust powers of the
Property Trustee or the Delaware Trustee or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g)
neither
the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee or the Delaware Trustee contemplated herein requires
the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing law of the United States or the State of Delaware governing
the banking and trust powers of the Property Trustee or the Delaware Trustee,
as
the case may be; and
(h)
to
the
best of each of the Property Trustee’s and the Delaware Trustee’s knowledge,
there are no proceedings pending or threatened against or affecting the
Property
Trustee
or the Delaware Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal that, individually or in the aggregate,
would materially and adversely affect the Trust or would question the right,
power and authority of the Property Trustee or the Delaware Trustee, as the
case
may be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
SECTION
7.2.
Representations
and Warranties of Depositor.
The
Depositor hereby represents and warrants for the benefit of the Holders
that:
(a)
the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation;
(b)
the
Depositor has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(c)
this
Trust Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity;
(d)
the
Securities Certificates issued at the Closing Date on behalf of the Trust have
been duly authorized and will have been duly and validly executed, issued and
delivered by the applicable Trustees pursuant to the terms and provisions of,
and in accordance with the requirements of, this Trust Agreement and the Holders
will be, as of such date, entitled to the benefits of this Trust
Agreement;
(e)
the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Depositor and do not require any approval of stockholders of the Depositor
and
such execution, delivery and performance will not (i) violate the articles
or
certificate of incorporation or by-laws (or other organizational documents)
of
the Depositor or (ii) violate any applicable law, governmental rule or
regulation governing the Depositor or any material portion of its property
or
any order, judgment or decree applicable to the Depositor or any material
portion of its property;
(f)
neither
the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to
any
governmental authority or agency under any existing law governing the Depositor
or any material portion of its property; and
(g)
there
are
no proceedings pending or, to the best of the Depositor’s knowledge, threatened
against or affecting the Depositor or any material portion of its property
in
any court or before any governmental authority, agency or arbitration board
or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Depositor, as the case may be, to enter into or perform its obligations under
this Trust Agreement.
ARTICLE
VIII.
THE
TRUSTEES
SECTION
8.1.
Number
of
Trustees.
The
number of Trustees shall be five (5), provided, that the Property Trustee and
the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be four (4). The number of Trustees may be increased or decreased
by Act of the Holder of the Common Securities subject to
Sections
8.2
,
8.3
,
and
8.4
.
The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust.
SECTION
8.2.
Property
Trustee Required.
There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a corporation organized and doing
business under the laws of the United States or of any state thereof, authorized
to exercise corporate trust powers, having a combined capital and surplus of
at
least fifty million dollars ($50,000,000), subject to supervision or examination
by federal or state authority and having an office within the United States.
If
any such Person publishes reports of condition at least annually pursuant to
law
or to the requirements of its supervising or examining authority, then for
the
purposes of this
Section 8.2
,
the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee shall cease to be eligible in
accordance with the provisions of this
Section 8.2
,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this
Article
VIII
.
SECTION
8.3.
Delaware
Trustee Required.
(a)
If
required by the Delaware Statutory Trust Act, there shall at all times be a
Delaware Trustee with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity that has its principal
place of business in the State of Delaware, otherwise meets the requirements
of
applicable Delaware law and shall act through one or more persons authorized
to
bind such entity. If at any time the Delaware Trustee shall cease to be eligible
in accordance with the provisions of this
Section
8.3
,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this
Article
VIII
.
(b)
The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Trust for the sole and limited purpose
of
fulfilling the requirements of Section 3807 of the Delaware Statutory Trust
Act
and for taking such actions as are required to be taken by a Delaware trustee
under the Delaware Statutory Trust Act. The duties (including fiduciary duties),
liabilities and obligations of the Delaware Trustee shall be limited to (a)
accepting legal process served on the Trust in the State of Delaware and (b)
the
execution of any certificates
required
to be filed with the Secretary of State of the State of Delaware that the
Delaware Trustee is required to execute under Section 3811 of the Delaware
Statutory Trust Act and there shall be no other duties (including fiduciary
duties) or obligations, express or implied, at law or in equity, of the Delaware
Trustee.
SECTION
8.4.
Appointment
of Administrative Trustees.
(a)
There
shall at all times be one or more Administrative Trustees hereunder with respect
to the Trust Securities. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. Each of the individuals
identified as an “Administrative Trustee” in the preamble of this Trust
Agreement hereby accepts his or her appointment as such.
(b)
Except
where a requirement for action by a specific number of Administrative Trustees
is expressly set forth in this Trust Agreement, any act required or permitted
to
be taken by, and any power of the Administrative Trustees may be exercised
by,
or with the consent of, any one such Administrative Trustee. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section
8.11
,
the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all
the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION
8.5.
Duties
and Responsibilities of the Trustees.
(a)
The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and there shall be no other duties (including
fiduciary duties) or obligations, express or implied, at law or in equity,
of
the Trustees; provided, however, that if an Event of Default known to the
Property Trustee has occurred and is continuing, the Property Trustee shall,
prior to the receipt of directions, if any, from the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities, exercise such of
the
rights and powers vested in it by this Trust Agreement, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require any of the Trustees 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 or their rights or powers, if it or they shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not herein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this
Section
8.5
.
To the
extent that, at law or in equity, a Trustee has duties (including fiduciary
duties) to the Trust or to the Holders, such Trustee’s duties may be restricted
or eliminated by the provisions in this Trust Agreement, except that this Trust
Agreement may not eliminate the implied contractual covenant of good faith and
fair dealing. A Trustee shall not be liable to the Trust or a Holder or another
Person that is party to or is otherwise bound by this Trust Agreement for breach
of fiduciary duty if the Trustee has relied in good faith on the provisions
of
this Trust Agreement. The provisions of this Trust Agreement, to the extent
that
they
limit or eliminate the liabilities of the Trustees otherwise existing at law
or
in equity, are agreed by the Depositor and the Holders to replace such other
liabilities of the Trustees, except that no provision of this Trust Agreement
may limit or eliminate liability for any act or omission that constitutes a
bad
faith violation of the implied contractual covenant of good faith and fair
dealing.
(b)
All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by
its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security
or
for any other liability in respect of any Trust Security. This
Section
8.5(b)
does not
limit the liability of the Trustees expressly set forth elsewhere in this Trust
Agreement.
(c)
No
provisions of this Trust Agreement shall be construed to relieve the Property
Trustee from liability with respect to matters that are within the authority
of
the Property Trustee under this Trust Agreement for its own negligent action,
negligent failure to act or willful misconduct, except that:
(i)
the
Property Trustee shall not be liable for any error or judgment made in good
faith by an authorized officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii)
the
Property Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee hereunder or under the Indenture,
or
exercising any trust or power conferred upon the Property Trustee under this
Trust Agreement;
(iii)
the
Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal
with
such Property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement;
(iv)
the
Property Trustee shall not be liable for any interest on any money received
by
it; and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to
Section
3.1
and
except to the extent otherwise required by law; and
(v)
the
Property Trustee shall not be responsible for monitoring the compliance by
the
Administrative Trustees or the Depositor with their respective
duties
under
this Trust Agreement, nor shall the Property Trustee be liable for the default
or misconduct of any other Trustee or the Depositor.
SECTION
8.6.
Notices
of Defaults and Extensions.
(a)
Within
ninety (90) days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default
to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived; provided, that, except in the case of a default
in the payment of the principal of or any premium or interest (including any
Additional Interest) on any Trust Security, the Property Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Trust Securities.
For
the purpose of this
Section
8.6
,
the
term “default” means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
(b)
Within
three (3) Business Days after the receipt of written notice of the Depositor’s
exercise of its right to defer the payment of interest on the Notes pursuant
to
the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in
Section
11.8
,
notice
of such exercise to the Holders and the Administrative Trustees, unless such
exercise shall have been revoked.
(c)
The
Property Trustee shall not be deemed to have knowledge of any default or Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee or any Holder or unless
a
Responsible Officer of the Property Trustee shall have obtained actual knowledge
of such default or Event of Default.
(d)
The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Notes.
SECTION
8.7.
Certain
Rights of Property Trustee.
Subject
to the provisions of
Section
8.5
:
(a)
the
Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, Opinion of Counsel, certificate, written representation
of
a Holder or transferee, certificate of auditors or any other resolution,
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
or presented by the proper party or parties;
(b)
if
(i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action, (ii) in construing
any
of the provisions of this Trust Agreement the Property Trustee finds a provision
ambiguous or inconsistent with any other provisions contained herein or (iii)
the Property Trustee is unsure of the application of any provision of this
Trust
Agreement, then, except as to any matter as to which the Holders of the
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property
Trustee
shall deliver a notice to the Depositor requesting the Depositor’s written
instruction as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking,
by
the Depositor; provided, that if the Property Trustee does not receive such
instructions of the Depositor within ten (10) Business Days after it has
delivered such notice or such reasonably shorter period of time set forth in
such notice, the Property Trustee may, but shall be under no duty to, take
such
action, or refrain from taking such action, as the Property Trustee shall deem
advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own negligence, bad faith or
willful misconduct;
(c)
any
direction or act of the Depositor contemplated by this Trust Agreement shall
be
sufficiently evidenced by an Officers’ Certificate unless otherwise expressly
provided herein;
(d)
any
direction or act of an Administrative Trustee contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such
Administrative Trustee and setting forth such direction or act;
(e)
the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f)
the
Property Trustee may consult with counsel (which counsel may be counsel to
the
Property Trustee, the Depositor or any of its Affiliates, and may include any
of
its employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g)
the
Property Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Trust Agreement at the request or direction of
any
of the Holders pursuant to this Trust Agreement, unless such Holders shall
have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property
Trustee;
(h)
the
Property Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Property Trustee
may make such further inquiry or investigation into such facts or matters as
it
may see fit, and, if the Property Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Depositor, personally or by agent or attorney;
(i)
the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, attorneys,
custodians or
nominees
and the Property Trustee shall not be responsible for any negligence or
misconduct on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(j)
whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or right
hereunder, the Property Trustee (i) may request instructions from the Holders
(which instructions may only be given by the Holders of the same proportion
in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under this Trust Agreement in respect of such remedy, right
or
action), (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (iii) shall be protected
in acting in accordance with such instructions;
(k)
except
as
otherwise expressly provided by this Trust Agreement, the Property Trustee
shall
not be under any obligation to take any action that is discretionary under
the
provisions of this Trust Agreement;
(l)
without
prejudice to any other rights available to the Property Trustee under applicable
law, when the Property Trustee incurs expenses or renders services in connection
with a Bankruptcy Event, such expenses (including legal fees and expenses of
its
agents and 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; and
(m)
whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable that a matter be proved or established prior to taking, suffering
or
omitting any action hereunder, the Property Trustee (unless other evidence
be
herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely on an Officers’ Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor.
No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION
8.8.
Delegation
of Power.
Any
Trustee may, by power of attorney or otherwise delegate to any other Person
its,
his or her power for the purpose of executing any documents contemplated in
Section
2.5
.
The
Trustees shall have power to delegate from time to time to such of their number
or to the Depositor the doing of such things and the execution of such
instruments 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 this Trust
Agreement.
SECTION
8.9.
May
Hold
Securities.
Any
Trustee or any other agent of any Trustee or the Trust, in its individual or
any
other capacity, may become the owner or pledgee of Trust Securities and except
as provided in the definition of the term “Outstanding” in
Article
I
,
may
otherwise deal with the Trust with the same rights it would have if it were
not
a Trustee or such other agent.
SECTION
8.10.
Compensation;
Reimbursement; Indemnity.
The
Depositor agrees:
(a)
to
pay to
the Trustees from time to time such reasonable compensation for all services
rendered by them hereunder as may be agreed by the Depositor and the Trustees
from time to time (which compensation shall not be limited by any provision
of
law in regard to the compensation of a trustee of an express
trust);
(b)
to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their gross negligence, bad
faith or willful misconduct; and
(c)
to
the
fullest extent permitted by applicable law, to indemnify and hold harmless
(i)
each Trustee (including in its individual capacity), (ii) any Affiliate of
any
Trustee, (iii) any officer, director, shareholder, employee, representative
or
agent of any Trustee or any Affiliate of any Trustee and (iv) any employee
or
agent of the Trust (referred to herein as an “Indemnified Person”) from and
against any loss, damage, liability, tax (other than income, franchise or other
taxes imposed on amounts paid pursuant to
Section
8.10(a)
or
(b)
hereof),
penalty, expense or claim of any kind or nature whatsoever incurred without
negligence, bad faith or willful misconduct on its part, arising out of or
in
connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the reasonable costs and expenses
of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The
Trust
shall have no payment, reimbursement or indemnity obligations to the Trustees
under this
Section
8.10
.
The
provisions of this
Section
8.10
shall
survive the termination of this Trust Agreement and the earlier removal or
resignation of any Trustee.
No
Trustee may claim any Lien on any Trust Property whether before or after
termination of the Trust as a result of any amount due pursuant to this
Section
8.10
.
To
the
fullest extent permitted by law, in no event shall the Property Trustee and
the
Delaware Trustee be liable for any indirect, special, punitive or consequential
loss or damage of any kind whatsoever, including, but not limited to, lost
profits, even if the Trustee has been advised of the likelihood of such loss
or
damage and regardless of the form of action.
In
no
event shall the Property Trustee and the Delaware Trustee be liable for any
failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations,
governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Trust Agreement.
SECTION
8.11.
Resignation
and Removal; Appointment of Successor.
(a)
No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this
Article
VIII
shall
become effective until the acceptance of appointment by the successor Trustee
in
accordance with the applicable requirements of
Section
8.12
.
(b)
A
Trustee
may resign at any time by giving written notice thereof to the Depositor and,
in
the case of the Property Trustee and the Delaware Trustee, to the
Holders.
(c)
Unless
an
Event of Default shall have occurred and be continuing, the Property Trustee
or
the Delaware Trustee, or both of them, may be removed (with or without cause)
at
any time by Act of the Holder of Common Securities. If an Event of Default
shall
have occurred and be continuing, the Property Trustee or the Delaware Trustee,
or both of them, may be removed (with or without cause) at such time by Act
of
the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual capacity and
on
behalf of the Trust). An Administrative Trustee may be removed (with or without
cause) only by Act of the Holder of the Common Securities at any
time.
(d)
If
any
Trustee shall resign, be removed or become incapable of acting as Trustee,
or if
a vacancy shall occur in the office of any Trustee for any reason, at a time
when no Event of Default shall have occurred and be continuing, the Holder
of
the Common Securities, by Act of the Holder of the Common Securities, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee
and
the retiring Trustee shall comply with the applicable requirements of
Section
8.12
.
If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when an Event of Default shall have occurred
and
be continuing, the Holders of the Preferred Securities, by Act of the Holders
of
a Majority in Liquidation Amount of the Preferred Securities, shall promptly
appoint a successor Property Trustee or Delaware Trustee, and such successor
Property Trustee or Delaware Trustee and the retiring Property Trustee or
Delaware Trustee shall comply with the applicable requirements of
Section
8.12
.
If an
Administrative Trustee shall resign, be removed or become incapable of acting
as
Administrative Trustee, at a time when an Event of Default shall have occurred
and be continuing, the Holder of the Common Securities by Act of the Holder
of
Common Securities shall promptly appoint a successor Administrative Trustee
and
such successor Administrative Trustee and the retiring Administrative Trustee
shall comply with the applicable requirements of
Section
8.12
.
If no
successor Trustee shall have been so appointed by the Holder of the Common
Securities or Holders of the Preferred Securities, as the case may be, and
accepted appointment in the manner required by
Section
8.12
within
thirty (30) days after the giving of a notice of resignation by a Trustee,
the
removal of a Trustee, or a Trustee becoming incapable of acting as such Trustee,
any Holder who has been a Holder of Preferred Securities for at least six (6)
months may, on behalf of himself and all others similarly situated, and any
resigning Trustee may, in each case, at the expense of the Depositor, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(e)
The
Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property
Trustee or Delaware Trustee to all Holders in the manner provided in
Section
11.8
.
Each
notice shall include the name of the successor Property Trustee or Delaware
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(f)
Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event
any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may
be filled by (i) the unanimous act of the remaining Administrative Trustees
if
there are at least two of them or (ii) otherwise by the Holder of the Common
Securities (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as
the
case may be, set forth in
Sections
8.3
and
8.4
).
(g)
Upon
the
appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust in accordance
with Section 3810 of the Delaware Statutory Trust Act.
SECTION
8.12.
Acceptance
of Appointment by Successor.
(a)
In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
shall execute and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request
of
the Trust or any successor Trustee such retiring Trustee shall, upon payment
of
its charges, duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Trustee
hereunder with respect to the Trust Securities and the Trust.
(b)
Upon
request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all instruments for more
fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the preceding paragraph.
(c)
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VIII
.
SECTION
8.13.
Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Property Trustee or the Delaware Trustee may be merged
or
converted or with which it may be consolidated, or any Person resulting from
any
merger, conversion or consolidation to which such Trustee shall be a party,
or
any Person succeeding to all or substantially all the corporate trust business
of such Trustee, shall be the successor of such 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 Person shall be otherwise qualified and
eligible under this
Article
VIII
.
SECTION
8.14.
Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities Certificates shall be taken
as
the statements of the Trust and the Depositor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the title to, or value or condition of, the property of the Trust or
any
part thereof, nor as to the validity or sufficiency of this Trust Agreement,
the
Notes or the Trust Securities. The Trustees shall not be accountable for the
use
or application by the Depositor of the proceeds of the Notes.
SECTION
8.15.
Property
Trustee May File Proofs of Claim.
(a)
In
case
of any Bankruptcy Event (or event that with the passage of time would become
a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions
on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Trust for the payment
of
any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or
otherwise:
(i)
to
file
and prove a claim for the whole amount of any Distributions owing and unpaid
in
respect of the Trust Securities and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel)
and
of the Holders allowed in such judicial proceeding; and
(ii)
to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding is hereby authorized by each Holder
to
make such payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to the Holders,
to
pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee,
its
agents and counsel, and any other amounts due the Property Trustee.
(b)
Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION
8.16.
Reports
to and from the Property Trustee.
(a)
The
Depositor and the Administrative Trustees shall deliver to the Property Trustee,
not later than one hundred and twenty (120) days after the end of each fiscal
year of the Depositor ending after the date hereof, an Officers’ Certificate
(substantially in the form attached hereto as
Exhibit
H
)
covering the preceding fiscal year, stating whether or not to the knowledge
of
the signers thereof the Depositor, the Administrative Trustees or the Trust
are
in default in the performance or observance of any of the terms, provisions
and
conditions of this Trust Agreement (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Depositor, the
Administrative Trustees or the Trust shall be in default, specifying all such
defaults and the nature and status thereof of which they have
knowledge.
(b)
The
Depositor shall furnish to (i) the Property Trustee, (ii) the Purchaser, (iii)
any Owner of the Preferred Securities reasonably identified to the Depositor
or
the Trust (which identification may be made either by such Owner or by the
Placement Agent or the Purchaser) and (iv) any designee of (i), (ii) or (iii)
above, a duly completed and executed certificate in the form attached hereto
as
Exhibit
G
,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Depositor not later than
forty five (45) days after the end of each of the first three fiscal quarters
of
each fiscal year of the Depositor and not later than ninety (90) days after
the
end of each fiscal year of the Depositor.
(c)
The
Property Trustee shall receive all reports, certificates and information, which
it is entitled to obtain under each of the Operative Documents, and deliver
to
(i) the Purchaser, (ii) the Placement Agent and (iii) a designee of (i) or
(ii)
above as identified in writing to the Property Trustee, copies of all such
reports, certificates or information promptly upon receipt thereof.
ARTICLE
IX.
TERMINATION,
LIQUIDATION AND MERGER
SECTION
9.1.
Dissolution
Upon Expiration Date.
Unless
earlier dissolved, the Trust shall automatically dissolve on January 30, 2042
(the “Expiration Date”), and the Trust Property shall be liquidated in
accordance with
Section
9.4
.
SECTION
9.2.
Early
Termination.
The
first
to occur of any of the following events is an “Early Termination Event”, upon
the occurrence of which the Trust shall be dissolved:
(a)
the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall have transferred the Common Securities
as
provided by
Section
5.11
,
in
which case this provision shall refer instead to any such successor Holder
of
the Common Securities;
(b)
the
written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any
liabilities of the Trust as
required
by applicable law, to distribute the Notes to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities), provided, that the Holder
of
the Common Securities shall have received the prior approval of the Federal
Reserve if then required;
(c)
the
redemption of all of the Preferred Securities in connection with the payment
at
maturity or redemption of all the Notes; and
(d)
the
entry
of an order for dissolution of the Trust by a court of competent
jurisdiction.
SECTION
9.3.
Termination.
The
respective obligations and responsibilities of the Trustees and the Trust shall
terminate upon the latest to occur of the following: (a) the distribution by
the
Property Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Trust pursuant to
Section
9.4
,
or upon
the redemption of all of the Trust Securities pursuant to
Section 4.2
;
(b) the
satisfaction of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Holders.
SECTION
9.4.
Liquidation.
(a)
If
an
Early Termination Event specified in
Section
9.2(a)
,
(b)
or
(d)
occurs
or upon the Expiration Date, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee shall determine to be possible
by distributing, after satisfaction of liabilities to creditors of the Trust
as
provided by applicable law, to each Holder a Like Amount of Notes, subject
to
Section
9.4(d)
.
Notice
of liquidation shall be given by the Property Trustee not less than thirty
(30)
nor more than sixty (60) days prior to the Liquidation Date to each Holder
of
Trust Securities at such Holder’s address appearing in the Securities Register.
All such notices of liquidation shall:
(i)
state
the
Liquidation Date;
(ii)
state
that from and after the Liquidation Date, the Trust Securities will no longer
be
deemed to be Outstanding and (subject to
Section
9.4(d)
)
any
Securities Certificates not surrendered for exchange will be deemed to represent
a Like Amount of Notes; and
(iii)
provide
such information with respect to the mechanics by which Holders may exchange
Securities Certificates for Notes, or if
Section
9.4(d)
applies,
receive a Liquidation Distribution, as the Property Trustee shall deem
appropriate.
(b)
Except
where
Section
9.2(c)
or
9.4(d)
applies,
in order to effect the liquidation of the Trust and distribution of the Notes
to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date
for
such distribution (which shall not be more than forty-five (45) days prior
to
the Liquidation Date nor prior to the date on which notice of such liquidation
is given to the
Holders)
and establish such procedures as it shall deem appropriate to effect the
distribution of Notes in exchange for the Outstanding Securities
Certificates.
(c)
Except
where
Section
9.2(c)
or
9.4(d)
applies,
after the Liquidation Date, (i) the Trust Securities will no longer be deemed
to
be Outstanding, (ii) certificates representing a Like Amount of Notes will
be
issued to Holders of Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) the Depositor shall
use
its best efforts to have the Notes listed on the New York Stock Exchange or
on
such other exchange, interdealer quotation system or self-regulatory
organization on which the Preferred Securities are then listed, if any, (iv)
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Notes bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Securities
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will
be
made to Holders of Securities Certificates with respect to such Notes) and
(v)
all rights of Holders holding Trust Securities will cease, except the right
of
such Holders to receive Notes upon surrender of Securities
Certificates.
(d)
Notwithstanding
the other provisions of this
Section
9.4
,
if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall
be
liquidated, and the Trust shall be wound up by the Property Trustee in such
manner as the Property Trustee determines. In such event, Holders will be
entitled to receive out of the assets of the Trust available for distribution
to
Holders, after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the “Liquidation Distribution”). If, upon any such winding up the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding up pro rata (based
upon Liquidation Amounts) with Holders of all Trust Securities, except that,
if
an Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities as provided in
Section
4.3
.
SECTION
9.5.
Mergers,
Consolidations, Amalgamations or Replacements of Trust.
The
Trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to, any Person except pursuant to this
Article
IX
.
At the
request of the Holders of the Common Securities, without the consent of the
Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as
such
under the laws of any State; provided, that:
(a)
such
successor entity either (i) expressly assumes all of the obligations of the
Trust under this Trust Agreement with respect to the Preferred Securities or
(ii) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred
Securities
(such other Securities, the “Successor Securities”) so long as the Successor
Securities have the same priority as the Preferred Securities with respect
to
distributions and payments upon liquidation, redemption and
otherwise;
(b)
a
trustee
of such successor entity possessing substantially the same powers and duties
as
the Property Trustee is appointed to hold the Notes;
(c)
if
the
Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Notes (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization that
then assigns a rating to the Preferred Securities or the Notes;
(d)
the
Preferred Securities are listed, or any Successor Securities will be listed
upon
notice of issuance, on any national securities exchange or interdealer quotation
system on which the Preferred Securities are then listed, if any;
(e)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect;
(f)
such
successor entity has a purpose substantially identical to that of the
Trust;
(g)
prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Depositor has received an Opinion of Counsel to the effect that
(i)
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in
any
material respect; (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an “investment company” under the
Investment Company Act and (iii) 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 U.S.
federal income tax purposes; and
(h)
the
Depositor or its permitted transferee owns all of the common securities of
such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee
Agreement.
Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of all
of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other entity to consolidate,
amalgamate, merge with or into, or replace, the Trust if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the
Trust or the successor entity to be taxable as a corporation or classified
as
other than a grantor trust for United States federal income tax purposes or
cause the Notes to be treated as other than indebtedness of the Depositor for
United States federal income tax purposes.
ARTICLE
X.
INFORMATION
TO PURCHASER
SECTION
10.1.
Depositor
Obligations to Purchaser.
Notwithstanding
any other provision herein, the Depositor shall furnish to (a) the Purchaser,
(b) any Owner of the Preferred Securities reasonably identified to the Depositor
or the Trust (which identification may be made either by such Owner or by the
Placement Agent or the Purchaser) and (c) any designee of (a) or (b) above,
copies of all correspondence, notices, forms, filings, reports and other
documents required to be provided by the Depositor, whether acting through
an
Administrative Trustee or otherwise, to the Property Trustee or Delaware Trustee
under this Trust Agreement.
SECTION
10.2.
Property
Trustee’s Obligations to Purchaser.
Notwithstanding
any other provision herein, the Property Trustee shall furnish to (a) the
Purchaser, (b) the Placement Agent and (c) a designee of (a) or (b) above,
as
identified in writing to the Property Trustee, copies of all (i) correspondence,
notices, forms, filings, reports and other documents received by the Property
Trustee or Delaware Trustee from the Depositor, whether acting through an
Administrative Trustee or otherwise, under this Trust Agreement, and (ii) all
correspondence, notices, forms, filings, reports and other documents required
to
be provided to the Depositor or a Holder by the Property Trustee or Delaware
Trustee under this Trust Agreement.
ARTICLE
XI.
MISCELLANEOUS
PROVISIONS
SECTION
11.1.
Limitation
of Rights of Holders.
Except
as
set forth in
Section
9.2
,
the
death, bankruptcy, termination, dissolution or incapacity of any Person having
an interest, beneficial or otherwise, in Trust Securities shall not operate
to
terminate this Trust Agreement, nor annul, dissolve or terminate the Trust
nor
entitle the legal representatives or heirs of such Person or any Holder for
such
Person, to claim an accounting, take any action or bring any proceeding in
any
court for a partition or winding up of the arrangements contemplated hereby,
nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION
11.2.
Agreed
Tax Treatment of Trust and Trust Securities.
The
parties hereto and, by its acceptance or acquisition of a Trust Security or
a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Trust Security intend and agree to treat the Trust
as a grantor trust for United States federal, state and local tax purposes,
and
to treat the Trust Securities (including all payments and proceeds with respect
to such Trust Securities) as undivided beneficial ownership interests in the
Trust Property (and payments and proceeds therefrom, respectively) for United
States federal, state and local tax purposes and to treat the Notes as
indebtedness of the Depositor for United States federal, state
and
local
tax purposes. The provisions of this Trust Agreement shall be interpreted to
further this intention and agreement of the parties.
SECTION
11.3.
Amendment.
(a)
This
Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without
the
consent of any Holder of the Preferred Securities, (i) to cure any ambiguity,
correct or supplement any provision herein that may be defective or inconsistent
with any other provision herein, or to make or amend any other provisions with
respect to matters or questions arising under this Trust Agreement, which shall
not be inconsistent with the other provisions of this Trust Agreement, (ii)
to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will neither be taxable
as
a corporation nor be classified as other than a grantor trust for United States
federal income tax purposes at all times that any Trust Securities are
Outstanding or to ensure that the Notes are treated as indebtedness of the
Depositor for United States federal income tax purposes, or to ensure that
the
Trust will not be required to register as an “investment company” under the
Investment Company Act or (iii) to add to the covenants, restrictions or
obligations of the Depositor; provided, that in the case of clauses (i), (ii)
or
(iii), such action shall not adversely affect in any material respect the
interests of any Holder.
(b)
Except
as
provided in
Section
11.3(c)
,
any
provision of this Trust Agreement may be amended by the Property Trustee, the
Administrative Trustees and the Holder of all of the Common Securities and
with
(i) the consent of Holders of at least a Majority in Liquidation Amount of
the
Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel
to the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not cause the Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes or affect the treatment of the Notes as
indebtedness of the Depositor for United States federal income tax purposes
or
affect the Trust’s exemption from status (or from any requirement to register)
as an “investment company” under the Investment Company Act.
(c)
Notwithstanding
any other provision of this Trust Agreement, without the consent of each Holder,
this Trust Agreement may not be amended to (i) change the accrual rate, amount,
currency or timing of any Distribution on or the redemption price of the Trust
Securities or otherwise adversely affect the amount of any Distribution or
other
payment required to be made in respect of the Trust Securities as of a specified
date, (ii) restrict or impair the right of a Holder to institute suit for the
enforcement of any such payment on or after such date, (iii) reduce the
percentage of aggregate Liquidation Amount of Outstanding Preferred Securities,
the consent of whose Holders is required for any such amendment, or the consent
of whose Holders is required for any waiver of compliance with any provision
of
this Trust Agreement or of defaults hereunder and their consequences provided
for in this Trust Agreement; (iv) impair or adversely affect the rights and
interests of the Holders in the Trust Property, or permit the creation of any
Lien on any portion of the Trust Property; or (v) modify the definition of
“Outstanding,” this
Section
11.3(c)
,
Sections
4.1
,
4.2
,
4.3
,
6.10(e)
or
Article
IX
.
(d)
Notwithstanding
any other provision of this Trust Agreement, no Trustee shall enter into or
consent to any amendment to this Trust Agreement that would cause the Trust
to
be taxable as a corporation or to be classified as other than a grantor trust
for United States federal income tax purposes or that would cause the Notes
to
fail or cease to be treated as indebtedness of the Depositor for United States
federal income tax purposes or that would cause the Trust to fail or cease
to
qualify for the exemption from status (or from any requirement to register)
as
an “investment company” under the Investment Company Act.
(e)
If
any
amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor and the Note Trustee
a
copy of such amendment.
(f)
No
Trustee shall be required to enter into any amendment to this Trust Agreement
that affects its own rights, duties or immunities under this Trust Agreement.
The Trustees shall be entitled to receive an Opinion of Counsel and an Officers’
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement and all conditions precedent herein provided for
relating to such action have been met.
(g)
No
amendment or modification to this Trust Agreement that adversely affects in
any
material respect the rights, duties, liabilities, indemnities or immunities
of
the Delaware Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.
SECTION
11.4.
Separability.
If
any
provision in this Trust Agreement or in the Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired thereby,
and there shall be deemed substituted for the provision at issue a valid, legal
and enforceable provision as similar as possible to the provision at
issue.
SECTION
11.5.
Governing
Law.
THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND
THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
SECTION
11.6.
Successors.
This
Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Trust and any Trustee, including any successor
by operation of law. Except in connection with a transaction involving the
Depositor that is permitted under
Article
VIII
of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor’s obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION
11.7.
Headings.
The
Article and Section headings are for convenience only and shall not affect
the
construction of this Trust Agreement.
SECTION
11.8.
Reports,
Notices and Demands.
(a)
Any
report, notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Holder or the Depositor may be given or served in writing delivered in person,
or by reputable, overnight courier, by telecopy or by deposit thereof,
first-class postage prepaid, in the United States mail, addressed, (a) in the
case of a Holder of Preferred Securities, to such Holder as such Holder’s name
and address may appear on the Securities Register; and (b) in the case of the
Holder of all the Common Securities or the Depositor, to Horizon Bancorp, 515
Franklin Square, Michigan City, Indiana 46360, Attention: Chief Financial
Officer, or to such other address as may be specified in a written notice by
the
Holder of all the Common Securities or the Depositor, as the case may be, to
the
Property Trustee. Such report, notice, demand or other communication to or
upon
a Holder or the Depositor shall be deemed to have been given when received
in
person, within one (1) Business Day following delivery by overnight courier,
when telecopied with receipt confirmed, or within three (3) Business Days
following delivery by mail, 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.
(b)
Any
notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Property
Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall
be
given in writing by deposit thereof, first-class postage prepaid, in the U.S.
mail, personal delivery or facsimile transmission, addressed to such Person
as
follows: (a) with respect to the Property Trustee and the Delaware Trustee,
to
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Capital Markets, facsimile
no. (302) 636-4140; (b) with respect to the Administrative Trustees, to them
at
the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of Horizon Bancorp Capital Trust III,” and (c) with
respect to the Trust, to its principal executive office specified in
Section
2.2
,
with a
copy to the Property Trustee. Such notice, demand or other communication to
or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of
the
writing by the Trust, the Property Trustee or the Administrative
Trustees.
SECTION
11.9.
Agreement
Not to Petition.
Each
of
the Trustees and the Depositor agree for the benefit of the Holders that, until
at least one year and one day after the Trust has been terminated in accordance
with
Article
IX
,
they
shall not file, or join in the filing of, a petition against the Trust under
any
Bankruptcy Law or otherwise join in the commencement of any proceeding against
the Trust under any Bankruptcy Law. If the Depositor takes action in violation
of this
Section
11.9
,
the
Property Trustee agrees, for the benefit of Holders, that at the expense of
the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the
defense
that the Depositor has agreed in writing not to take such action and should
be
estopped and precluded therefrom and such other defenses, if any, as counsel
for
the Property Trustee or the Trust may assert.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Delivery
of an executed signature page of this Amended and Restated Trust Agreement
by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Trust Agreement as of the day and year first above written.
|
HORIZON
BANCORP
,
|
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as
Depositor
|
|
|
|
|
By:
|
/s/
Craig M. Dwight
|
|
|
Craig
M. Dwight
|
|
|
President
and Chief Executive Officer
|
|
|
|
|
|
|
|
WILMINGTON
TRUST COMPANY
,
|
|
as
Delaware Trustee
|
|
|
|
By:
|
/s/
W. T. Morris II
|
|
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Name:
W. Thomas Morris, II
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Title:
Assistant Vice President
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WILMINGTON
TRUST COMPANY
,
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as
Property Trustee
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By:
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/s/
W.
T. Morris II
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Name:
W. Thomas Morris, II
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Title:
Assistant Vice President
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/s/
Craig M. Dwight
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Craig
M. Dwight
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Administrative
Trustee
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/s/
Thomas H. Edwards
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Thomas
H. Edwards
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Administrative
Trustee
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/s/
James H. Foglesong
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James
H. Foglesong
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Administrative
Trustee
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Exhibit
A
CERTIFICATE
OF TRUST
OF
HORIZON
BANCORP CAPITAL TRUST III
This
Certificate of Trust of Horizon Bancorp Capital Trust III (the “Trust”) is being
duly executed and filed on behalf of the Trust by the undersigned, as trustees,
to form a statutory trust under the Delaware Statutory Trust Act (12
Del
.
C.
§3801
et
seq
.)
(the
“Act”).
1.
Name
.
The
name of the statutory trust formed by this Certificate of Trust is: Horizon
Bancorp Capital Trust III.
2.
Delaware
Trustee
.
The
name and business address of the trustee of the Trust with its principal place
of business in the State of Delaware are Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Capital Markets.
3.
Effective
Date
.
This
Certificate of Trust shall be effective upon its filing with the Secretary
of
State of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust
in
accordance with Section 3811(a)(1) of the Act.
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Wilmington
Trust Company, not in its individual capacity, but solely as Property
Trustee
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By:
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Name:
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Title:
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Wilmington
Trust Company, not in its individual capacity, but solely as Delaware
Trustee
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By:
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Name:
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Title:
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Exhibit
B
[FORM
OF
COMMON SECURITIES 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. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT
IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT.
Certificate
Number C-
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_________
Common Securities
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Certificate
Evidencing Common Securities
of
Horizon
Bancorp Capital Trust III
Floating
Rate Common Securities
(liquidation
amount $1,000 per Common Security)
Horizon
Bancorp Capital Trust III, a statutory trust created under the laws of the
State
of Delaware (the “Trust”), hereby certifies that ______________________ (the
“Holder”) is the registered owner of ____________common securities of the Trust
representing undivided common beneficial interests in the assets of the Trust
and designated the Horizon Bancorp Capital Trust III Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the “Common
Securities”). Except in accordance with
Section
5.11
of the
Trust Agreement (as defined below), the Common Securities are not transferable
and, to the fullest extent permitted by law, any attempted transfer hereof
other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of December 15, 2006, as the same may be amended from time
to
time (the “Trust Agreement”), among Horizon Bancorp, as Depositor, Wilmington
Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware
Trustee, the Administrative Trustees named therein and the Holders, from time
to
time, of Trust Securities. The Trust will furnish a copy of the Trust Agreement
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
This
Common Securities Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
Terms
used but not defined herein have the meanings set forth in the Trust
Agreement.
In
Witness Whereof
,
one of
the Administrative Trustees of the Trust has executed on behalf of the Trust
this certificate this ____ day of ________________.
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Horizon
Bancorp Capital Trust III
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By:
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Name:
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Administrative
Trustee
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Exhibit
C
[FORM
OF PREFERRED SECURITIES CERTIFICATE]
“[
IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST
AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER
OF
THIS PREFERRED 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 PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
HORIZON BANCORP CAPITAL TRUST III OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE
NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF RULE 144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF AN “ACCREDITED INVESTOR,” WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, 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, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE
OF
(III), SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION
OF COUNSEL ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER WILL NOTIFY ANY
PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES OR ANY INTEREST
THEREIN IN A BLOCK HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000
AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF
NO
LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH PREFERRED SECURITIES OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, 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 PREFERRED SECURITY
OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER
SECTION
408(b)(17) OF ERISA,
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 ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406
OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING.
ANY
PURCHASER OR HOLDER OF THE PREFERRED 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 OR OTHER PLAN TO WHICH TITLE I OF ERISA
OR
SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE
SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
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.
Certificate
Number P-
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_________
Preferred Securities
________
Aggregate Liquidation Amount
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CUSIP
NO.
_______________
Certificate
Evidencing Preferred Securities
of
Horizon
Bancorp Capital Trust III
Floating
Rate Preferred Securities
(liquidation
amount $1,000 per Preferred Security)
Horizon
Bancorp Capital Trust III, a statutory trust created under the laws of the
State
of Delaware (the “Trust”), hereby certifies that ___________________ (the
“Holder”) is the registered owner of ___________ Preferred Securities [if the
Preferred Security is a Global Security, then insert--, or such other number
of
Preferred Securities represented hereby as may be set forth in the records
of
the Securities Registrar hereinafter referred to in accordance with the Trust
Agreement (as defined below),] of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated the Horizon
Bancorp Capital Trust III Floating Rate Preferred Securities (liquidation amount
$1,000 per Preferred Security) (the “Preferred Securities”). The Preferred
Securities are transferable on the books and records of the Trust, in person
or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in
Section
5.7
of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust, dated
as of December 15, 2006, as the same may be amended from time to time (the
“Trust Agreement”), among Horizon Bancorp, an Indiana corporation, as Depositor,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein and the Holders,
from time to time, of Trust Securities. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by Horizon Bancorp and Wilmington Trust
Company, as Guarantee Trustee, dated as of December 15, 2006, as the same may
be
amended from time to time (the “Guarantee Agreement”), to the extent provided
therein. The Trust will furnish a copy of each of the Trust Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Property Trustee at its principal place of business or registered
office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
This
Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All
capitalized terms used but not defined in this Preferred Securities Certificate
are used with the meanings specified in the Trust Agreement, including the
Schedules and Exhibits thereto.
In
Witness Whereof
,
one of
the Administrative Trustees of the Trust has executed on behalf of the Trust
this certificate this __ day of __________, ____.
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HORIZON
BANCORP CAPITAL TRUST III
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By:
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Craig
M. Dwight
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Administrative
Trustee
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This
represents Preferred Securities referred to in the within-mentioned Trust
Agreement.
Dated:
_______________, 2006
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WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Property
Trustee
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By:
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Authorized
officer
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[FORM
OF
REVERSE OF SECURITY]
The
Trust
promises to pay Distributions from December 15, 2006, or from the most recent
Distribution Date to which Distributions have been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on January
30
th
,
April
30
th
,
July
30
th
,
October
30
th
of each
year, commencing on January 30, 2007, at a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.65% of the Liquidation Amount of the Preferred
Securities represented by this Preferred Securities Certificate, together with
any Additional Interest Amounts, in respect to such period.
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
In
the
event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, Distributions on the
Preferred Securities shall be deferred.
Under
the
Indenture, so long as no Note Event of Default pursuant to paragraphs
(c)
,
(e)
,
(f)
,
(g)
or
(h)
of
Section
5.1
of the
Indenture has occurred and is continuing, the Depositor shall have the right,
at
any time and from time to time during the term of the Notes, to defer the
payment of interest on the Notes for a period of up to twenty (20) consecutive
quarterly interest payment periods (each such extended interest payment period,
an “Extension Period”), during which Extension Period no interest shall be due
and payable (except any Additional Tax Sums that may be due and payable). No
interest on the Notes 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 payment of such interest would be legally enforceable)
at a variable rate per annum, reset quarterly, equal to LIBOR plus 1.65%,
compounded quarterly, from the dates on which amounts would have otherwise
been
due and payable until paid or until funds for the payment thereof have been
made
available for payment. If Distributions are deferred, the deferred Distributions
(including Additional Interest Amounts) shall be paid on the date that the
related Extension Period terminates to Holders (as defined in the Trust
Agreement) of the Trust Securities as they appear on the books and records
of
the Trust on the record date immediately preceding such termination
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 Payment Account of the Trust. The Trust’s
funds available for Distribution to the Holders of the Preferred Securities
will
be limited to payments received from the Depositor. The payment of Distributions
out of moneys held by the Trust is guaranteed by the Depositor pursuant to
the
Guarantee Agreement.
During
any such Extension Period, the Depositor 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 Depositor’s Equity Interests,
(ii) vote in favor of or permit or otherwise
allow
any
of its Subsidiaries (as defined in the Indenture) to declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Depositor or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium on or
repay, repurchase or redeem any debt securities of the Depositor that rank
pari
passu in all respects with or junior in interest to the Notes (other than (a)
repurchases, redemptions or other acquisitions of Equity Interests of the
Depositor in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase or similar plan with respect to any Equity Interests or (3)
the
issuance of Equity Interests of the Depositor (or securities convertible into
or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the Depositor’s
Equity Interests (or any Equity Interests of a Subsidiary of the Depositor)
for
any class or series of the Depositor’s Equity Interests or of any class or
series of the Depositor’s indebtedness for any class or series of the
Depositor’s Equity Interests, (c) the purchase of fractional interests in Equity
Interests of the Depositor pursuant to the conversion or exchange provisions
of
such Equity Interests or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan (as defined in
the
Indenture), the issuance of rights, Equity Interests or other property under
any
Rights Plan, or the redemption or repurchase of rights pursuant thereto or
(e)
any dividend in the form of Equity Interests, warrants, options or other rights
where the dividend Equity Interests or the Equity Interests issuable upon
exercise of such warrants, options or other rights are the same Equity Interests
as those on which the dividend is being paid or rank pari passu with or junior
to such Equity Interests).
On
each
Note Redemption Date, on the stated maturity (or any date of principal repayment
upon early maturity) of the Notes and on each other date on (or in respect
of)
which any principal on the Notes is repaid, the Trust will be required to redeem
a Like Amount of Trust Securities at the Redemption Price. Under the Indenture,
the Notes may be redeemed by the Depositor on any Interest Payment Date, at
the
Depositor’s option, on or after January 30, 2012 in whole or in part from time
to time at a redemption price equal to one hundred percent (100%) of the
principal amount thereof or the redeemed portion thereof, as applicable,
together, in the case of any such redemption, with accrued interest, including
any Additional Interest, to but excluding the date fixed for redemption;
provided, that the Depositor shall have received the prior approval of the
Federal Reserve if then required. The Notes may also be redeemed by the
Depositor, at its option, at any time, in whole but not in part, upon the
occurrence of a Capital Disqualification Event, an Investment Company Event
or a
Tax Event at the Special Event Redemption Price; provided, that the Depositor
shall have received the prior approval of the Federal Reserve if then
required.
The
Trust
Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or payment at
maturity of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each Redemption
Date
only to the extent that the Trust has
funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account
at a
banking institution in the United States as may be designated in writing at
least ten (10) Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions have not been
received by the relevant record date, in which case such payments shall be
made
by check mailed to the address of such Person as such address shall appear
in
the Security Register. If any Preferred Securities are held by a Depositary,
such Distributions shall be made to the Depositary in immediately available
funds.
The
indebtedness evidenced by the Notes is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of
all
Senior Debt (as defined in the Indenture), and this Security is issued subject
to the provisions of the Indenture with respect thereto.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Preferred Securities
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 Preferred Securities Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
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Signature:
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(Sign
exactly as your name appears on the other side of this Preferred
Securities Certificate)
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The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership
in
an approved signature guarantee medallion program), pursuant to S.E.C. Rule
17Ad-15.
Exhibit
D
Junior
Subordinated Indenture
Exhibit
E
FORM
OF
TRANSFEREE CERTIFICATE
TO
BE
EXECUTED BY TRANSFEREES OTHER THAN QIBS
__________,
[ ]
Horizon
Bancorp
Horizon
Bancorp Capital Trust III
515
Franklin Square
Michigan
City, Indiana 46360
Re:
Purchase
of $1,000 stated liquidation amount of Floating Rate Preferred
Securities
(the “Preferred Securities”) of Horizon Bancorp Capital Trust
III
Ladies
and Gentlemen:
In
connection with our purchase of the Preferred Securities we confirm
that:
1.
We
understand that the Floating Rate Preferred Securities (the “Preferred
Securities”) of Horizon Bancorp Capital Trust III (the “Trust”) (including the
guarantee (the “Guarantee”) of Horizon Bancorp (the “Company”) executed in
connection therewith) and the Floating Rate Junior Subordinated Notes due 2037
of the Company (the “Subordinated Notes”) (the Preferred Securities, the
Guarantee and the Subordinated Notes together being referred to herein as the
“Offered Securities”), 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 Offered Securities
that,
if we decide to offer, sell or otherwise transfer any such Offered Securities,
(i) such offer, sale or transfer will be made only (a) to the Trust, (b) to
a
person we reasonably believe is a “qualified institutional buyer” (a “QIB”) (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, or (c) to an institutional “accredited investor”
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under
the Securities Act that is acquiring Offered 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, in each case in accordance with
any
applicable securities laws of any state of the United States or any other
applicable jurisdiction and, in the case of (c), subject to the right of the
Trust and the depositor to require an opinion of counsel and other information
satisfactory to each of them. If any resale or other transfer of the Offered
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 Property 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) or (7) of Rule 501 under
the Securities Act that is acquiring such Securities for investment purposes
and
not for distribution in violation of the Securities Act. We acknowledge on
our
behalf and on behalf of any investor account for which we are purchasing
Securities that the Trust and the Company reserve the right prior to any offer,
sale or other transfer pursuant to clause (c) to require the delivery of any
opinion of counsel, certifications and/or other information satisfactory to
the
Trust and the Company. We understand that the certificates for
any
Offered Security that we receive 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) or
(7) 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 Offered
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 Offered
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 Offered 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 Offered Securities, 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 Preferred Securities or any Subordinated Notes,
we
will acquire such Preferred Securities having an aggregate stated liquidation
amount of not less than $100,000 or such Subordinated Notes having an aggregate
principal amount not less than $100,000, for our own account and for each
separate account for which we are acting.
5.
We
acknowledge that either (A) we are not and are not acting as a fiduciary of
or
on behalf of 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 are not purchasing the Offered Securities on behalf of or with “plan assets”
by reason of any Plan’s investment in the entity; (B) we are eligible for the
exemptive relief available under Section 408(b)(17) of ERISA, 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 or another
applicable exemption; or (C) our purchase and holding of this security, or
any
interest therein, is not prohibited by Section 406 of ERISA or Section 4975
of
the Code with respect to such purchase or holding.
6.
We
acknowledge that the Trust and the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties
and
agreements and agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our purchase of the
Offered Securities are no longer accurate, we shall promptly notify the Company.
If we are acquiring any Offered 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 agreement on behalf of each such investor
account.
(Name
of
Purchaser)
Upon
transfer, the Offered Securities would be registered in the name of the new
beneficial owner as follows.
Name:
|
|
Address:
|
|
Taxpayer
ID Number:
|
|
Exhibit
F
FORM
OF
TRANSFEROR CERTIFICATE
TO
BE
EXECUTED FOR QIBs
__________,
[ ]
Horizon
Bancorp
Horizon
Bancorp Capital Trust III
515
Franklin Square
Michigan
City, Indiana 46360
|
Re:
|
Purchase
of $1,000 stated liquidation amount of Floating
Rate
|
Preferred
Securities (the “Preferred Securities”) of Horizon Bancorp Capital Trust
III
Reference
is hereby made to the Amended and Restated Trust Agreement of Horizon Bancorp
Capital Trust III, dated as of December 15, 2006 (the “Trust Agreement”), among
Craig M. Dwight, Thomas H. Edwards and James H. Foglesong, as Administrative
Trustees, Wilmington Trust Company, as Delaware Trustee, Wilmington Trust
Company, as Property Trustee, Horizon Bancorp, as Depositor, and the holders
from time to time of undivided beneficial interests in the assets of Horizon
Bancorp Capital Trust III. Capitalized terms used but not defined herein shall
have the meanings given them in the Trust Agreement.
This
letter relates to $________________________ aggregate liquidation amount of
Preferred Securities which are held in the name of _____________ (the
“Transferor”).
In
accordance with Article V of the Trust Agreement, the Transferor hereby
certifies that such Preferred Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Preferred Securities and
(ii) Rule 144A under the Securities Act (“Rule 144A”), to a transferee that the
Transferor reasonably believes is purchasing the Preferred 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 hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
|
|
(Name
of Transferor)
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
Date:
|
|
|
|
Exhibit
G
Form
of
Officer’s
Financial Certificate
The
undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 8.16(b) of the Amended and
Restated Trust Agreement, dated as of December 15, 2006, among Horizon Bancorp
(the “Company”), Wilmington Trust Company, as property trustee, Wilmington Trust
Company, as Delaware trustee and the administrative trustees named therein,
that, as of _______, 20__, the Company had the following ratios and
balances:
BANK
HOLDING COMPANY
As
of [Quarterly Financial Dates]
|
|
Tier
1 Risk Weighted Assets
|
__________
%
|
Ratio
of Double Leverage
|
__________
%
|
Non-Performing
Assets to Loans and OREO
|
__________
%
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
__________
%
|
Ratio
of Reserves to Non-Performing Loans
|
__________
%
|
Ratio
of Net Charge-Offs to Loans
|
__________
%
|
Return
on Average Assets (annualized)
|
__________
%
|
Net
Interest Margin (annualized)
|
__________
%
|
Efficiency
Ratio
|
__________
%
|
Ratio
of Loans to Assets
|
__________
%
|
Ratio
of Loans to Deposits
|
__________
%
|
Double
Leverage (exclude trust preferred as equity)
|
__________
%
|
Total
Assets
|
$_
_________
|
Year
to Date Income
|
$__________
|
*
A table
describing the quarterly report calculation procedures is attached.
[
FOR
FISCAL YEAR END:
Attached
hereto are the audited consolidated financial statements (including the balance
sheet, income statement and statement of cash flows, and notes thereto, together
with the report of the independent accountants thereon) of the Company and
its
consolidated subsidiaries for the three years ended _______, 20__.]
[
FOR
FISCAL QUARTER END:
Attached
hereto are the unaudited consolidated and consolidating financial statements
(including the balance sheet and income statement) of the
Company
and its consolidated subsidiaries for the fiscal quarter and [six/nine] month
period ended _______, 20___].
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [___ quarter
interim] [annual] period ended _______, 20__, and such financial statements
have
been prepared in accordance with GAAP consistently applied throughout the period
involved (expect as otherwise noted therein).
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this _____ day of _____________, 20__.
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
Horizon
Bancorp
|
|
515
Franklin Square
|
|
Michigan
City, Indiana 46360
|
|
(219)
879-0211
|
BANK
HOLDING COMPANY
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Tier
1 Risk Weighted Assets
|
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
Ratio
of Double Leverage
|
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries divided by the total equity capital.
This field is calculated at the parent company level. “Subsidiaries”
include bank, bank holding company, and non-bank
subsidiaries.
|
Non-Performing
Assets to Loans and OREO
|
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital - Goodwill)/(Total Assets - Goodwill)
|
Ratio
of Reserves to Non-Performing Loans
|
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual + Restructured)
|
Ratio
of Net Charge-Offs to Loans
|
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
Return
on Average Assets (annualized)
|
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Net
Interest Margin (annualized)
|
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
Ratio
of Loans to Assets
|
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
Ratio
of Loans to Deposits
|
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign Deposits)
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash and balances due from depository
institutions; securities; federal funds sold and securities purchased
under agreements to resell; loans and lease financing receivables;
trading
assets; premises and fixed assets; other real estate owned; investments
in
unconsolidated subsidiaries and associated companies; customer’s liability
on acceptances outstanding; intangible assets; and other
assets.
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
Net
Income
|
(BHCK4300)
Schedule
HI
|
The
sum of income (loss)before extraordinary items and other adjustments
and
extraordinary items; and other adjustments, net of income
taxes.
|
Exhibit
H
FORM
OF
OFFICERS’
CERTIFICATE
UNDER
SECTION
8.16(a)
Pursuant
to Section 8.16(a) of the Amended and Restated Trust Agreement, dated as of
December 15, 2006 (as modified, supplemented or amended from time to time,
the
“Trust Agreement”) of Horizon Bancorp Capital Trust III, a Delaware statutory
trust (the “Trust”), each of the undersigned hereby certifies that, to the
knowledge of the undersigned, none of the Depositor, the Administrative Trustees
and the Trust are in default in the performance or observance of any of the
terms, provisions and conditions of the Trust Agreement (without regard to
any
period of grace or requirement of notice provided under the Trust Agreement)
for
the fiscal period ending on _________, 20__ [, except as follows:
specify
each such default and the nature and status thereof
].
Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings assigned thereto in the Trust Agreement.
[
signatures
appear on the next page
]
IN
WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
__________, 20__.
|
|
|
|
Name:
|
|
|
Title:
|
[
Must
be the Chief Executive Officer, the President, or an Executive Vice
President
]
of Horizon Bancorp
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
Title:
|
[
Must
be the Chief Financial Officer, the Treasurer, or an Assistant
Treasurer
]
of Horizon Bancorp
|
|
|
|
|
|
|
|
|
|
|
Administrative
Trustee of Horizon Bancorp Capital Trust III
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
Administrative
Trustee of Horizon Bancorp Capital Trust III
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
Administrative
Trustee of Horizon Bancorp Capital Trust III
|
|
Name:
|
|
Schedule
A
With
respect to the Trust Securities, the London interbank offered rate (“LIBOR”)
shall be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1)
On
the
second LIBOR Business Day (as defined below) prior to a Distribution Date
(except, with respect to the first distribution payment period, on December
13,
2006) (each such day, a “LIBOR Determination Date”), LIBOR for any given
security shall, for the following distribution period, equal the rate, as
obtained by the Calculation Agent from Bloomberg Financial Markets Commodities
News, for three-month U.S. Dollar deposits in Europe, which appears on Dow
Jones
Telerate Page 3750 (as defined in the International Swaps and Derivatives
Association, Inc. 1991 Interest Rate and Currency Exchange Definitions), or
such
other page as may replace such Page 3750, as of 11:00 a.m. (London time) on
such
LIBOR Determination Date.
(2)
If,
on
any LIBOR Determination Date, such rate does not appear on Dow Jones Telerate
Page 3750 or such other page as may replace such 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 the LIBOR Determination Date made
by
the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that leading
banks in the City of New York selected by the Calculation Agent are quoting
on
the relevant LIBOR Determination Date for three-month U.S. Dollar deposits
in
Europe in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
provided, that 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
shall be LIBOR as determined on the previous LIBOR Determination
Date.
(3)
As
used
herein: “Reference Banks” means four major banks in the London interbank market
selected by the Calculation Agent; and “LIBOR Business Day” means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign currency deposits) in London.
Schedule
A-1
Exhibit
10.1
GUARANTEE
AGREEMENT
between
HORIZON
BANCORP,
As
Guarantor,
and
WILMINGTON
TRUST COMPANY,
As
Guarantee Trustee
Dated
as of December 15, 2006
HORIZON
BANCORP CAPITAL TRUST III
TABLE
OF CONTENTS
ARTICLE
I
|
INTERPRETATION
AND DEFINITIONS
|
2
|
SECTION
1.1
|
Interpretation.
|
2
|
SECTION
1.2
|
Definitions.
|
2
|
|
|
|
ARTICLE
II
|
REPORTS
|
6
|
SECTION
2.1
|
List
of Holders.
|
6
|
SECTION
2.2
|
Periodic
Reports to the Guarantee Trustee.
|
6
|
SECTION
2.3
|
Event
of Default; Waiver.
|
6
|
SECTION
2.4
|
Event
of Default; Notice.
|
7
|
|
|
|
ARTICLE
III
|
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
|
7
|
SECTION
3.1
|
Powers
and Duties of the Guarantee Trustee.
|
7
|
SECTION
3.2
|
Certain
Rights of the Guarantee Trustee.
|
8
|
SECTION
3.3
|
Compensation.
|
10
|
SECTION
3.4
|
Indemnity.
|
10
|
SECTION
3.5
|
Securities.
|
11
|
|
|
|
ARTICLE
IV
|
GUARANTEE
TRUSTEE
|
11
|
SECTION
4.1
|
Guarantee
Trustee; Eligibility.
|
11
|
SECTION
4.2
|
Appointment,
Removal and Resignation of the Guarantee Trustee.
|
12
|
|
|
|
ARTICLE
V
|
GUARANTEE
|
12
|
SECTION
5.1
|
Guarantee.
|
12
|
SECTION
5.2
|
Waiver
of Notice and Demand.
|
13
|
SECTION
5.3
|
Obligations
Not Affected.
|
13
|
SECTION
5.4
|
Rights
of Holders.
|
14
|
SECTION
5.5
|
Guarantee
of Payment.
|
14
|
SECTION
5.6
|
Subrogation.
|
14
|
SECTION
5.7
|
Independent
Obligations.
|
15
|
SECTION
5.8
|
Enforcement.
|
15
|
|
|
|
ARTICLE
VI
|
COVENANTS
AND SUBORDINATION
|
15
|
SECTION
6.1
|
Dividends,
Distributions and Payments.
|
15
|
SECTION
6.2
|
Subordination.
|
16
|
SECTION
6.3
|
Pari
Passu Guarantees.
|
16
|
|
|
|
ARTICLE
VII
|
TERMINATION
|
17
|
SECTION
7.1
|
Termination.
|
17
|
|
|
|
ARTICLE
VIII
|
MISCELLANEOUS
|
17
|
SECTION
8.1
|
Successors
and Assigns.
|
17
|
SECTION
8.2
|
Amendments.
|
17
|
SECTION
8.3
|
Notices.
|
17
|
SECTION
8.4
|
Benefit.
|
18
|
SECTION
8.5
|
Governing
Law.
|
19
|
SECTION
8.6
|
Submission
to Jurisdiction.
|
19
|
SECTION
8.7
|
Counterparts;
Facsimile.
|
19
|
GUARANTEE
AGREEMENT, dated as of December 15, 2006, executed and
delivered by HORIZON BANCORP, an Indiana corporation (the
“Guarantor”
)
having its principal office at 515 Franklin Square, Michigan City, IN 46360,
and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (in
such
capacity, the
“Guarantee Trustee”
), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of Horizon Bancorp Capital Trust III, a Delaware statutory trust
(the
“Issuer”
).
W
I T N E S S E T H :
WHEREAS,
pursuant to an Amended and Restated Trust Agreement,
dated as of the date hereof (the
“Trust Agreement”
), among the
Guarantor, as Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustees named therein and the holders from time to time of
the
Preferred Securities (as hereinafter defined), the Issuer is issuing $12,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement) of its Floating
Rate Preferred Securities (Liquidation Amount $1,000 per preferred security)
(the
“Preferred Securities”
) representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set
forth
in the Trust Agreement;
WHEREAS,
the Preferred Securities will be issued by the Issuer and
the proceeds thereof, together with the proceeds from the issuance of the
Issuer’s Common Securities (as defined below), will be used to purchase the
Notes (as defined in the Trust Agreement) of the Guarantor; and
WHEREAS,
as incentive for the Holders to purchase Preferred
Securities the Guarantor desires irrevocably and unconditionally to agree,
to
the extent set forth herein, to pay to the Holders of the Preferred 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
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement
to
provide as follows for the benefit of the Holders from time to time of the
Preferred Securities:
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
SECTION
1.1
Interpretation.
In
this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized
terms used in this Guarantee Agreement but
not defined in the preamble hereto have the respective meanings assigned
to them
in
Section 1.2
;
(b) the
words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”;
(c) all
references to “the Guarantee Agreement” or “this
Guarantee Agreement” are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all
references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) the
words “hereby”, “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Guarantee Agreement as a
whole
and not to any particular Article, Section or other subdivision;
(f) a
reference to the singular includes the plural and vice
versa; and
(g) the
masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION
1.2
Definitions
.
As
used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings:
“Affiliate”
of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct
or
indirect common control with such specified Person;
provided
, that the
Issuer shall not be deemed to be an Affiliate of the Guarantor. For the purposes
of this definition,
“control”
when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms
“controlling”
and
“controlled”
have meanings correlative to the foregoing.
“Beneficiaries”
means any Person to whom the Issuer is or
hereafter becomes indebted or liable.
“Board
of Directors”
means either the board of directors
of the Guarantor or any duly authorized committee of that board.
“Common
Securities”
means the securities representing
common undivided beneficial interests in the assets of the Issuer.
“Debt”
means with respect to any Person, whether recourse
is to all or a portion of the assets of such Person, whether currently existing
or hereafter incurred, and whether or not contingent and without duplication,
(i) every obligation of such Person for money borrowed; (ii) every obligation
of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person
with
respect to letters of credit, bankers’ acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued
or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable arising in the ordinary course of business); (v) every
capital lease obligation of such Person; (vi) all indebtedness of such Person,
whether incurred on or prior to the date of this Guarantee Agreement or
thereafter incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts, options,
swaps and similar arrangements; (vii) every obligation of the type referred
to
in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, such Person has guaranteed or
is
responsible or liable for, directly or indirectly, as obligor or otherwise;
and
(viii) any renewals, extensions, refundings, amendments or modifications
of any
obligation of the type referred to in clauses (i) through (vii).
“Event
of Default”
means a default by the Guarantor on
any of its payment or other obligations under this Guarantee Agreement;
provided, that except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default from the Guarantee
Trustee and shall not have cured such default within thirty (30) days after
receipt of such notice.
“Guarantee
Payments”
means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions (as defined in the Trust Agreement) required to
be paid
on the Preferred Securities, to the extent the Issuer shall have funds on
hand
available therefor at such time, (ii) the Redemption Price (as defined in
the
Trust Agreement) with respect to any Preferred Securities to the extent the
Issuer shall have funds on hand available therefor at such time, and (iii)
upon
a voluntary or involuntary termination, winding up or liquidation of the
Issuer,
unless Notes are distributed to the Holders, the lesser of (a) the aggregate
of
the Liquidation Amount of $1,000 per Preferred Security plus accumulated
and
unpaid Distributions on the Preferred Securities to the date of payment,
to the
extent that
the
Issuer shall have funds available 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 in accordance with applicable law (in either case,
the
“Liquidation Distribution”
).
“Guarantee
Trustee”
means Wilmington Trust Company in its
capacity as trustee hereunder, until a Successor Guarantee Trustee, as defined
below, has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
“Holder”
means any holder, as registered on the books and
records of the Issuer, of any Preferred Securities;
provided
, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, “Holder”
shall not include the Guarantor, the Guarantee Trustee or any Affiliate of
the
Guarantor or the Guarantee Trustee.
“Indenture”
means the Junior Subordinated Indenture,
dated as of the date hereof, as supplemented and amended, between the Guarantor
and Wilmington Trust Company, as trustee.
“List
of Holders”
has the meaning specified in
Section 2.1.
“Majority
in Liquidation Amount of the Preferred
Securities”
means a vote by the Holder(s), voting separately as a class, of
more than fifty percent (50%) of the aggregate Liquidation Amount of all
then
outstanding Preferred Securities issued by the Issuer.
“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.
“Officers’
Certificate”
means, with respect to any
Person, a certificate signed by the Chief Executive Officer, Chief Financial
Officer, President or a Vice President of such Person, and by the Treasurer,
an
Assistant Treasurer, the Secretary or an Assistant Secretary of such Person,
and
delivered to the Guarantee Trustee. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement (other than the certificate provided pursuant to
Section
2.4
) shall include:
(a) a
statement that each officer signing the Officers’
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a
brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers’ Certificate;
(c) a
statement that each 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
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,
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 Senior Vice President, any Vice President, any Assistant
Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Financial Services Officer or Assistant Financial
Services Officer or any other officer in the Corporate Trust Office of the
Guarantee Trustee with direct responsibility for the administration of this
Guarantee Agreement 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.
“Senior
Debt”
means the principal of and any premium and
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Guarantor whether or
not
such claim for post-petition interest is allowed in such proceeding) all
Debt of
the Guarantor, whether incurred on or prior to the date of the Indenture
or
thereafter incurred, unless 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 in right of payment to the Preferred Securities;
provided, however
, that if the Guarantor is subject to the regulation
and supervision of an “appropriate Federal banking agency” within the meaning of
12 U.S.C. 1813(q), the Guarantor shall have received the approval of such
appropriate Federal banking agency prior to issuing any such obligation if
not
otherwise generally approved or authorized;
provided further
, that
Senior Debt shall not include any other debt securities, and guarantees in
respect of such debt securities, issued to any trust other than the Issuer
(or a
trustee of such trust), partnership or other entity affiliated with the
Guarantor that is a financing vehicle of the Guarantor (a “financing entity”),
in connection with the issuance by such financing entity of equity securities
or
other securities that are treated as equity capital for regulatory capital
purposes guaranteed by the Guarantor pursuant to an instrument that ranks
pari passu
with or junior in right of payment to this Guarantee
Agreement, including, without limitation, securities issued by Alliance
Financial Statutory Trust I, Horizon Statutory Trust I and Horizon Bancorp
Capital Trust II.
“Successor
Guarantee Trustee”
means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.1.
“Trust
Indenture Act”
means the Trust Indenture Act of
1939, as amended and as in effect on the date of this Guarantee Agreement.
Capitalized
or otherwise defined terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
ARTICLE
II
REPORTS
SECTION
2.1
List of Holders.
The
Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee at such times as the Guarantee Trustee may request in writing,
within thirty (30) days after the receipt by the Guarantor of any such request,
a list, in such form as the Guarantee Trustee may reasonably require, of
the
names and addresses of the Holders (the
“List of Holders”
) as of a date
not more than fifteen (15) days prior to the time such list is furnished,
in
each case to the extent such information is in the possession or control
of the
Guarantor and is not identical to a previously supplied list of Holders or
has
not otherwise been received by the Guarantee Trustee in its capacity as such.
The Guarantee Trustee may destroy any List of Holders previously given to
it on
receipt of a new List of Holders.
SECTION
2.2
Periodic Reports to the Guarantee
Trustee.
The
Guarantor shall deliver to the Guarantee Trustee, within one
hundred and twenty (120) days after the end of each fiscal year of the Guarantor
ending after the date of this Guarantee Agreement, an Officers’ Certificate
covering the preceding fiscal year, stating whether or not to the knowledge
of
the signers thereof the Guarantor is in default in the performance or observance
of any of the terms or provisions or any of the conditions of this Guarantee
Agreement (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Guarantor shall be in default thereof,
specifying all such defaults and the nature and status thereof of which they
have knowledge.
SECTION
2.3
Event of Default; Waiver.
The
Holders of a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders, waive any past Event of Default
and
its consequences. Upon such waiver, any such Event of Default shall cease
to
exist, and any Event of Default arising therefrom shall be deemed to have
been
cured, for every purpose of this Guarantee Agreement, but no such waiver
shall
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION
2.4
Event of Default; Notice
.
(a) The
Guarantee Trustee shall, within ninety (90) days
after the occurrence of a default, transmit to the Holders notices of all
defaults actually known to the Guarantee Trustee, unless such defaults have
been
cured or waived before the giving of such notice,
provided
, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so
long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders. For the purpose of this
Section 2.4
, the term
“default”
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
(b) The
Guarantee Trustee shall not be deemed to have
knowledge of any default or Event of Default unless the Guarantee Trustee
shall
have received written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have received written notice,
of such default or Event of Default from the Guarantor or a Holder.
ARTICLE
III
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION
3.1
Powers and Duties of the Guarantee
Trustee.
(a) This
Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising
its
rights pursuant to
Section 5.4(d)
or to a Successor Guarantee Trustee
upon 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, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder,
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) The
rights, immunities, duties and responsibilities of
the Guarantee Trustee shall be as provided by this Guarantee Agreement and
there
shall be no other duties or obligations, express or implied, of the Guarantee
Trustee. Notwithstanding the foregoing, no provisions of this Guarantee
Agreement shall require the Guarantee Trustee 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 against such risk or liability is not reasonably assured to it.
Whether or not herein expressly so
provided,
every provision of this Guarantee Agreement relating to
the conduct or affecting the liability of or affording protection to the
Guarantee Trustee shall be subject to the provisions of this
Section 3.1
.
To the extent that, at law or in equity, the Guarantee Trustee has duties
and
liabilities relating to the Guarantor or the Holders, the Guarantee Trustee
shall not be liable to any Holder for the Guarantee Trustee’s good faith
reliance on the provisions of this Guarantee Agreement. The provisions of
this
Guarantee Agreement, to the extent that they restrict the duties and liabilities
of the Guarantee Trustee otherwise existing at law or in equity, are agreed
by
the Guarantor and the Holders to replace such other duties and liabilities
of
the Guarantee Trustee.
(c) No
provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, negligent failure to act or own willful misconduct, except that:
(i) 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 the Guarantee Trustee was negligent
in
ascertaining the pertinent facts upon which such judgment was made; and
(ii) 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 direction of the Holders of not less than a Majority in Liquidation
Amount of the Preferred 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 Agreement.
SECTION
3.2
Certain Rights of the Guarantee
Trustee.
(a) Subject
to the provisions of
Section 3.1
:
(i) the
Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith and in
accordance with the terms hereof 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
reasonably 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 Agreement shall be sufficiently evidenced by an Officers’
Certificate unless otherwise prescribed herein;
(iii) the
Guarantee Trustee may consult with counsel, and the
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken
by
it hereunder in good faith and in reliance thereon and in
accordance with such advice. Such counsel may be counsel to the Guarantee
Trustee, the Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court
of
competent jurisdiction;
(iv) the
Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee Agreement
at
the request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee reasonable security or indemnity against the costs,
expenses (including reasonable attorneys’ fees and expenses) 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
, that, nothing contained in this Section
3.2(a)(iv)
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 Agreement;
(v) 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, and
if
the Guarantee Trustee shall determine to make such inquiry or investigation,
it
shall be entitled to examine the books, records and premises of the Guarantor,
personally or by agent or attorney;
(vi) the
Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents, attorneys, custodians or nominees and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any
such agent, attorney, custodian or nominee appointed with due care by it
hereunder;
(vii) whenever
in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right hereunder, the Guarantee Trustee
(A) may request instructions from the Holders of a Majority in Liquidation
Amount of the Preferred 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 acting in accordance with such instructions;
(viii) except
as otherwise expressly provided by this
Guarantee Agreement, the Guarantee Trustee shall not be under any obligation
to
take
any action that is discretionary under the provisions of this
Guarantee Agreement;
(ix) whenever,
in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved
or established before taking, suffering or omitting to take 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 rely
upon
an Officers’ Certificate which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor; and
(x) 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).
(b) No
provision of this Guarantee Agreement 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 to act in accordance with such power and
authority.
SECTION
3.3
Compensation.
The
Guarantor shall pay to the Guarantee Trustee from time to time
reasonable compensation agreed upon by the Guarantor and the Guarantee Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provisions of law in regard to the compensation of a trustee
of
an express trust) and to reimburse the Guarantee Trustee upon request for
all
reasonable expenses, disbursements and advances (including the reasonable
fees
and expenses of its attorneys and agents) incurred or made by the Guarantee
Trustee in accordance with any provisions of this Guarantee Agreement.
SECTION
3.4
Indemnity.
The
Guarantor agrees to indemnify and hold harmless the Guarantee
Trustee (including in its individual capacity) and any of its Affiliates
and any
of their officers, directors, shareholders, employees, representatives or
agents
from and against any loss, damage, liability, tax (other than income, franchise
or other taxes imposed on amounts paid pursuant to
Section 3.3
), penalty,
expense or claim of any kind or nature whatsoever incurred without negligence,
bad faith or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including
the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its rights, powers
or
duties
hereunder.
The Guarantee Trustee will not claim or exact any lien
or charge on any Guarantee Payments as a result of any amount due to it under
this Guarantee Agreement. This indemnity shall survive the termination of
this
Agreement or the resignation or removal of the Guarantee Trustee.
In
no event shall the Guarantee Trustee be liable for any
indirect, special, punitive or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits, even if the Guarantee
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
In
no event shall the Guarantee Trustee be liable for any failure
or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of
God,
flood, war (declared or undeclared), terrorism, fire, riot, embargo or
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Guarantee Agreement.
SECTION
3.5
Securities.
The
Guarantee Trustee or any other agent of the Guarantee Trustee,
in its individual or any other capacity, may become the owner or pledgee
of
Common or Preferred Securities.
ARTICLE
IV
GUARANTEE
TRUSTEE
SECTION
4.1
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 or of any State thereof, authorized to exercise
corporate trust powers, having a combined capital and surplus of at least
fifty
million dollars ($50,000,000), subject to supervision or examination by Federal
or State authority and having an office within the United States. If such
corporation publishes reports of condition at least annually, pursuant to
law or
to the requirements of such supervising or examining authority, then, for
the
purposes of this
Section 4.1
, 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 4.1(a)
, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section
4.2(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 in the manner and with the effect set out in
Section 4.2(c)
.
SECTION
4.2
Appointment, Removal and Resignation of the
Guarantee Trustee.
(a) Subject
to
Section 4.2(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 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 hereunder 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 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 4.2
within
thirty (30) days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the expense
of the
Guarantor, 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.
ARTICLE
V
GUARANTEE
SECTION
5.1
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 or on behalf of the Issuer), as and when due,
regardless of any defense (except for the defense of payment by the Issuer),
right of set-off or counterclaim which 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. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct payment
to the
Holders hereunder.
(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
5.2
Waiver of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, 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
5.3
Obligations Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by
reason
of the happening from time to time of any of the following:
(a) the
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 Preferred 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 (other than an extension of time
for
payment of Distributions that results from the extension of any interest
payment
period on the Notes as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(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 Preferred
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
Preferred 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 5.3
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 the consent of, the Guarantor with respect to the happening of any
of the
foregoing.
SECTION
5.4
Rights of Holders.
The
Guarantor expressly acknowledges that: (a) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (b) the Guarantee Trustee has the right to enforce
this
Guarantee Agreement on behalf of the Holders; (c) the Holders of a Majority
in
Liquidation Amount of the Preferred 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 Agreement or exercising
any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (d) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person.
SECTION
5.5
Guarantee of Payment.
This
Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of
the Guarantee Payments in full (without duplication of amounts theretofore
paid
by the Issuer) or upon distribution of Notes to Holders as provided in the
Trust
Agreement.
SECTION
5.6
Subrogation.
The
Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders
by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to
Section 5.1
;
provided
, that,
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights 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 Agreement, if, at the time of any
such
payment, any amounts are due and unpaid under this Guarantee Agreement. 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
5.7 Independent Obligations.
The
Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
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
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of
Section 5.3
.
SECTION
5.8
Enforcement.
A
Beneficiary may enforce the Obligations of the Guarantor
contained in
Section 5.1(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.
ARTICLE
VI
COVENANTS
AND SUBORDINATION
SECTION
6.1
Dividends, Distributions and
Payments
.
So
long as any Preferred Securities remain outstanding, if there
shall have occurred and be continuing an Event of Default or the Guarantor
shall
have entered into an Extension Period as provided for in the Indenture and
such
period, or any extension thereof, shall have commenced and be continuing,
then
the Guarantor 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 Guarantor’s Equity Interests (as defined in the Indenture), (b) vote in
favor of or permit or otherwise allow any of its Subsidiaries (as defined
in the
Indenture) to declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to or otherwise
retire, any of such Subsidiary’s Equity Interests entitling the holders thereof
to a stated rate of return other than dividends or distributions on Equity
Interests payable to the Guarantor or any Subsidiary thereof (for the avoidance
of doubt, whether such Equity Interests are perpetual or otherwise), or (c)
make
any payment of principal of or any interest or premium on or repay, repurchase
or redeem any debt securities of the Guarantor that rank
pari passu
in
all respects with or junior in interest to the junior subordinated notes
issued
by the Guarantor pursuant to the Indenture (other than (i) repurchases,
redemptions or other acquisitions of Equity Interests of the Guarantor in
connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, (2) a dividend reinvestment or stockholder stock
purchase or similar plan with respect to any Equity Interests or (3) the
issuance of Equity Interests of the Guarantor (or securities convertible
into or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to the occurrence of such Event of Default
or the
applicable Extension Period, (ii) as a result of an exchange or conversion
of
any class or series of the Guarantor’s Equity Interests (or any Equity Interests
of a Subsidiary of the Guarantor) for any class or series of the Guarantor’s
Equity Interests or any class of series of the
Guarantor’s
indebtedness for any class or series of the
Guarantor’s Equity Interests, (iii) the purchase of fractional interests in
Equity Interests of the Guarantor pursuant to the conversion or exchange
provisions of such Equity Interests or the security being converted or
exchanged, (iv) any declaration of a dividend in connection with any rights
plan, the issuance of rights, Equity Interests or other property under any
rights plan or the redemption or repurchase of rights pursuant thereto, or
(v)
any dividend in the form of Equity Interests, warrants, options or other
rights
where the dividend Equity Interests or the Equity Interests issuable upon
exercise of such warrants, options or other rights are the same Equity Interests
as those on which the dividend is being paid or rank
pari passu
with or
junior to such Equity Interests).
SECTION
6.2
Subordination.
The
obligations of the Guarantor under this Guarantee Agreement
will constitute unsecured obligations of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor.
SECTION
6.3
Pari Passu Guarantees.
(a) The
obligations of the Guarantor under this Guarantee
Agreement shall rank
pari passu
with the obligations of the Guarantor
under any similar guarantee agreements issued by the Guarantor with respect
to
preferred securities (if any) similar to the Preferred Securities, issued
by
trusts other than the Issuer established or to be established by the Guarantor
(if any), in each case similar to the Issuer, including, without limitation,
(ii) the Guarantee Agreement, dated March 26, 2002, issued by the Guarantor
with
respect to the preferred securities issued by Horizon Statutory Trust I,
(ii)
the Guarantee Agreement, dated June 17, 2004, issued by the Guarantor with
respect to the preferred securities issued by Alliance Financial Statutory
Trust
I and (iii) the Guarantee Agreement, dated October 21, 2004, issued by the
Guarantor with respect to the preferred securities issued by Horizon Bancorp
Capital Trust II.
(b) 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 Debt of the Guarantor,
under
any indenture or agreement that the Guarantor may enter into in the future
or
otherwise.
ARTICLE
VII
TERMINATION
SECTION
7.1
Termination.
This
Guarantee Agreement shall terminate and be of no further
force and effect upon (a) full payment of the Redemption Price of all Preferred
Securities, (b) the distribution of Notes to the Holders in exchange for
all of
the Preferred Securities or (c) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to
be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Preferred Securities
or
this Guarantee Agreement. The obligations of the Guarantor under
Sections
3.3
and
3.4
shall survive any such termination or the resignation and
removal of the Guarantee Trustee.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1
Successors and Assigns.
All
guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the successor or assignee
agrees in writing to perform the Guarantor’s obligations hereunder, the
Guarantor shall not assign its rights or delegate its obligations hereunder
without the prior approval of the Holders of a Majority in Liquidation Amount
of
the Preferred Securities.
SECTION
8.2
Amendments.
Except
with respect to any changes that do not adversely affect
the rights of the Holders in any material respect (in which case no consent
of
the Holders will be required), this Guarantee Agreement may only be amended
with
the prior approval of the Guarantor, the Guarantee Trustee and the Holders
of
not less than a Majority in Liquidation Amount of the Preferred Securities.
The
provisions of Article VI of the Trust Agreement concerning meetings or consents
of the Holders shall apply to the giving of such approval.
SECTION
8.3
Notices.
Any
notice, request or other communication required or permitted
to be given hereunder shall be in writing, duly signed by the party giving
such
notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if
given to the Guarantor, to the address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Guarantor may give by notice to the
Guarantee Trustee and the Holders:
Horizon
Bancorp
515
Franklin Square
Michigan
City, IN 46360
Facsimile
No.: (219) 874-9280
Attention:
James H. Foglesong
(b) if
given to the Issuer, at the Issuer’s address or
facsimile number set forth below or such other address, facsimile number
or to
the attention of such other Person as the Issuer may give by notice to the
Guarantee Trustee and the Holders:
Horizon
Bancorp Capital Trust III
c/o
Horizon Bancorp
515
Franklin Square
Michigan
City, IN 46360
Facsimile
No.: (219) 874-9280
Attention:
Administrative Trustee
(c) if
given to the Guarantee Trustee, at the address or
facsimile number set forth below or such other address, facsimile number
or to
the attention of such other Person as the Guarantee Trustee may give by notice
to the Guarantor and the Holders:
Wilmington
Trust Company
Rodney
Square North, 1100 North Market Street
Wilmington,
Delaware 19890-0001
Facsimile
No.: (302) 636-4140
Attention:
Corporate Capital Markets
(d) if
given to any Holder, at the address set forth on the
books and records of the Issuer.
All
notices hereunder 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 Agreement is solely for the benefit of the Holders
and is not separately transferable from the Preferred Securities.
SECTION
8.5 Governing Law.
This
Guarantee Agreement and the rights and obligations of
each party hereto, shall be construed and enforced in accordance with and
governed by the laws of the State of New York without reference to its conflict
of laws provisions (other than Section 5-1401 of the General Obligations
Law).
SECTION
8.6
Submission to Jurisdiction.
ANY
LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR
WITH RESPECT TO OR ARISING OUT OF THIS GUARANTEE AGREEMENT MAY BE BROUGHT
IN OR
REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF
NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY
OF
THIS GUARANTEE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF
ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT
OF OR
IN CONNECTION WITH THIS GUARANTEE AGREEMENT.
SECTION
8.7
Counterparts; Facsimile.
This
instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed signature page of this Guarantee Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
[THE
NEXT PAGE IS THE SIGNATURE PAGE]
IN
WITNESS WHEREOF, the undersigned have executed this Guarantee
Agreement as of the date first above written.
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HORIZON
BANCORP
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By:
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/s/
Craig M. Dwight
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Craig
M. Dwight
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President
and Chief Executive Officer
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WILMINGTON
TRUST COMPANY
,
not in its individual capacity, but solely as Guarantee
Trustee
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By:
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/s/
W.T. Morris II
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Name:
W. Thomas Morris, II
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Title:
Assistant Vice
President
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