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0000718413-07-000056.txt : 20071102
0000718413-07-000056.hdr.sgml : 20071102
20071102163006
ACCESSION NUMBER: 0000718413-07-000056
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 7
CONFORMED PERIOD OF REPORT: 20071030
ITEM INFORMATION: Entry into a Material Definitive Agreement
ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
FILED AS OF DATE: 20071102
DATE AS OF CHANGE: 20071102
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: COMMUNITY BANCORP /VT
CENTRAL INDEX KEY: 0000718413
STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021]
IRS NUMBER: 030284070
STATE OF INCORPORATION: VT
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-16435
FILM NUMBER: 071210983
BUSINESS ADDRESS:
STREET 1: PO BOX 259
CITY: DERBY
STATE: VT
ZIP: 05829
BUSINESS PHONE: 8023347915
MAIL ADDRESS:
STREET 1: DERBY ROAD
CITY: DERBY
STATE: VT
ZIP: 05829
8-K
1
form8k103007.htm
8-K FOR COMMUNITY BANCORP.
form8k103007.htm
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
October
31, 2007
(Date
of
Report - Date of earliest event reported on)
COMMUNITY
BANCORP.
Vermont
|
000-16435
|
03-0284070
|
(State
of Incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
Derby
Road, Derby, Vermont
|
05829
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Registrant's
Telephone Number: (802) 334-7915
Not
Applicable
(Former
name, former address, if changed since last report)
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:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17CFR
203.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.01. Entry Into a Material Definitive
Agreement.
On
October 31, 2007, Community Bancorp., a Vermont corporation (the “Company”),
completed the issuance and sale of $12,500,000 in aggregate principal amount
of
trust preferred securities (the “Trust Preferred Securities”) issued by the
Company’s newly-formed subsidiary, CMTV Statutory Trust I, a Delaware statutory
trust (the “Trust”). The Trust Preferred Securities were sold to a pooling
vehicle sponsored by FTN Financial Capital Markets (a division of First
Tennessee Bank National Association) (“FTN”) and Keefe, Bruyette & Woods,
Inc. (“KBW”) in a private placement offering pursuant to an applicable exemption
from registration under the Securities Act of 1933, as amended. The
Trust simultaneously issued 387 of the Trust’s common securities (the “Common
Securities”) to the Company for a purchase price of $387,000, which constitutes
all of the issued and outstanding common securities of the Trust.
The
Trust
Preferred Securities will mature on December 15, 2037, may be called at par
by
the Company any time after December 15, 2012, and require quarterly
distributions of interest by the Trust to the holder of the Trust Preferred
Securities. Distributions will be payable quarterly at a fixed interest rate
equal to 7.56% per annum through December 15, 2012, and thereafter will be
payable at a floating interest rate equal to the 3-month London Interbank
Offered Rate (“LIBOR”) plus 2.85% per annum.
The
Trust
used the proceeds from the sale of the Trust Preferred Securities together
with
the proceeds from the sale of the Common Securities to purchase $12,887,000
in
aggregate principal amount of unsecured junior subordinated deferrable interest
debt securities due December 15, 2037, issued by the Company (the “Junior
Subordinated Debentures”). The Junior Subordinated Debentures are the Trust’s
only asset. The net proceeds to the Company from the sale of the Junior
Subordinated Debentures to the Trust will provide a portion of the funding
for
the Company’s pending acquisition of LyndonBank, Lyndonville,
Vermont.
The
Junior Subordinated Debentures were issued pursuant to an Indenture, dated
October 31, 2007 (the “Indenture”), between the Company, as issuer, Wilmington
Trust Company, as trustee, and the administrators named therein. The terms
of
the Junior Subordinated Debentures are substantially the same as the terms
of
the Trust Preferred Securities. The interest payments on the Junior Subordinated
Debentures paid by the Company will be used by the Trust to pay the quarterly
distributions to the holders of the Trust Preferred Securities. The Indenture
permits the Company to redeem the Junior Subordinated Debentures (and thus
a
like amount of the Trust Preferred Securities) on or after December 15, 2012,
or
earlier under specified conditions, including in circumstances involving certain
tax matters or changes in the applicable regulatory capital treatment for the
Trust Preferred Securities. If the Company redeems any amount of the Junior
Subordinated Debentures, the Trust must redeem a like amount of the Trust
Preferred Securities.
The
terms
of the Trust Preferred Securities are governed by an Amended and Restated
Declaration of Trust, dated October 31, 2007 (the “Trust Agreement”), among the
Company, as sponsor, Wilmington Trust Company, as institutional trustee and
Delaware trustee, the administrators named therein and the holders from time
to
time of undivided beneficial interests in the assets of the Trust.
Under
the
terms of the Trust Preferred Securities, an event of default generally occurs
upon:
|
•
|
|
non-payment
of interest on the Junior Subordinated Debentures when it becomes
due and
payable, subject to the Company’s right to defer interest payments for up
to twenty consecutive quarters, with interest accruing on deferred
interest payments during the extension period;
|
|
|
|
•
|
|
consent
by the Company to the appointment of a receiver, custodian, liquidator
(or
similar official) over all or any substantial portion of its assets,
any
general assignment by the Company for the benefit of creditors, or
failure
by the Company to pay its debts when they come due; or
|
|
|
|
•
|
|
the
bankruptcy or liquidation of the Company or of the Trust.
|
|
|
In
connection with the issuance of the Trust Preferred Securities, the Company
entered into a Guarantee Agreement with Wilmington Trust Company, as guarantee
trustee, dated October 31, 2007 (the “Guarantee Agreement”), for the purpose of
guaranteeing the payment, after the expiration of any grace or cure period,
of
any amounts to be paid by the Trust under the terms of the Trust Preferred
Securities. The obligations of the Company under the Guarantee Agreement
constitute unsecured obligations of the Company. The Guarantee Agreement will
terminate upon the full payment of the redemption price for the Trust Preferred
Securities or full payment of the Junior Subordinated Debentures upon
liquidation of the Trust.
The
issuance of the Trust Preferred Securities was conducted pursuant to a Placement
Agreement, dated as of October 30, 2007, among the Company, the Trust and FTN
and KBW as placement agents.
The
Company’s press release, issued on November 1, 2007, announcing completion of
the Trust Preferred Securities financing, is filed as Exhibit 99.1 to this
Report.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The
information required by this item is included in Item 1.01 and is
incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(c)
Exhibits.
4.1
|
Indenture dated as of October 31, 2007 between Community Bancorp.,
as
issuer and Wilmington Trust Company, as indenture
trustee.
|
4.2
|
Amended and Restated Declaration of Trust dated as of October 31,
2007
among Community Bancorp., as sponsor, Wilmington Trust Company, as
Delaware
and institutional Trustee, and the administrators named
therein.
|
10.1
|
Guarantee Agreement dated as of October 31, 2007 between Community
Bancorp., as guarantor and Wilmington Trust Company, as guarantee
trustee.
|
10.2
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Placement Agreement dated October 30, 2007 among Community Bancorp.,
CMTV
Statutory Trust I, FTN Financial Capital Markets and Keefe, Bruyette
&
Woods, Inc.
|
99.1
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Press Release issued on November 1,
2007.
|
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 hereunto
duly authorized.
|
|
COMMUNITY
BANCORP.
|
|
|
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DATED:
October 31, 2007
|
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/s/
Stephen P. Marsh
|
|
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Stephen
P. Marsh,
|
|
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President
& Chief Operating Officer
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(Chief
Financial Officer)
|
EX-4.1
2
indenture.htm
INDENTURE
indenture.htm
Exhibit
4.1
COMMUNITY
BANCORP.,
as
Issuer
INDENTURE
Dated
as of October 31, 2007
WILMINGTON
TRUST COMPANY,
as
Trustee
FIXED/FLOATING
RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE
2037
TABLE
OF CONTENTS
Page
ARTICLE
I. DEFINITIONS
Section
1.1. Definitions.
ARTICLE
II. DEBENTURES
Section
2.1. Authentication
and
Dating
Section
2.2. Form of
Trustee’s Certificate of
Authentication.
Section
2.3. Form and
Denomination of
Debentures.
Section
2.4. Execution
of
Debentures.
Section
2.5. Exchange
and Registration of
Transfer of Debentures.
Section
2.6. Mutilated,
Destroyed, Lost or
Stolen Debentures.
Section
2.7. Temporary
Debentures.
Section
2.8. Payment
of Interest and
Additional Interest.
Section
2.9. Cancellation
of Debentures Paid,
etc.
Section
2.10. Computation
of
Interest.
Section
2.11. Extension
of Interest Payment
Period.
Section
2.12. CUSIP
Numbers.
ARTICLE
III. PARTICULAR COVENANTS OF THE COMPANY
Section
3.1.Payment
of Principal, Premium and
Interest; Agreed Treatment of the Debentures.
Section
3.2. Offices
for Notices and Payments,
etc.
Section
3.3. Appointments
to Fill Vacancies in
Trustee’s Office.
Section
3.4. Provision
as to Paying
Agent.
Section
3.5. Certificate
to
Trustee.
Section
3.6. Additional
Sums.
Section
3.7. Compliance
with Consolidation
Provisions.
Section
3.8. Limitation
on
Dividends.
Section
3.9. Covenants
as to the
Trust.
Section
3.10. Additional
Junior
Indebtedness.
Section
3.11. Subsidiary;
Insured Depository
Institution.
ARTICLE
IV. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
Section
4.1. Securityholders’
Lists.
Section
4.2. Preservation
and Disclosure of
Lists.
Section
4.3. Reports
by the
Company.
ARTICLE
V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
Section
5.1. Events of
Default.
Section
5.2. Payment
of Debentures on Default;
Suit Therefor.
Section
5.3. Application
of Moneys Collected
by Trustee.
Section
5.4. Proceedings
by
Securityholders.
Section
5.5. Proceedings
by
Trustee.
Section
5.6.Remedies
Cumulative and
Continuing; Delay or Omission Not a Waiver.
Section
5.7.Direction
of Proceedings and
Waiver of Defaults by Majority of Securityholders.
Section
5.8. Notice of
Defaults.
Section
5.9. Undertaking
to Pay
Costs.
ARTICLE
VI. CONCERNING THE TRUSTEE
Section
6.1. Duties and
Responsibilities of
Trustee.
Section
6.2. Reliance
on Documents, Opinions,
etc.
Section
6.3. No Responsibility
for Recitals,
etc.
Section
6.4.Trustee,
Authenticating Agent,
Paying Agents, Transfer Agents or Registrar May Own
Debentures.
Section
6.5. Moneys to
be Held in
Trust.
Section
6.6. Compensation
and Expenses of
Trustee.
Section
6.7. Officers’
Certificate
as
Evidence.
Section
6.8. Eligibility
of
Trustee.
Section
6.9. Resignation
or Removal of
Trustee
Section
6.10. Acceptance
by Successor
Trustee.
Section
6.11. Succession
by Merger,
etc.
Section
6.12. Authenticating
Agents.
ARTICLE
VII. CONCERNING THE SECURITYHOLDERS
Section
7.1. Action by
Securityholders.
Section
7.2. Proof of
Execution by
Securityholders.
Section
7.3. Who Are
Deemed Absolute
Owners.
Section
7.4.Debentures
Owned by Company
Deemed Not Outstanding.
Section
7.5. Revocation
of Consents; Future
Holders Bound.
ARTICLE
VIII. SECURITYHOLDERS’ MEETINGS
Section
8.1. Purposes
of
Meetings.
Section
8.2. Call of
Meetings by
Trustee.
Section
8.3. Call of
Meetings by Company or
Securityholders.
Section
8.4. Qualifications
for
Voting.
Section
8.5. Regulations.
Section
8.6. Voting.
Section
8.7. Quorum;
Actions.
ARTICLE
IX. SUPPLEMENTAL INDENTURES
Section
9.1.Supplemental
Indentures without
Consent of Securityholders.
Section
9.2.Supplemental
Indentures with
Consent of Securityholders.
Section
9.3. Effect of
Supplemental
Indentures.
Section
9.4. Notation
on
Debentures.
Section
9.5.Evidence
of Compliance of
Supplemental Indenture to be Furnished to Trustee.
ARTICLE
X. REDEMPTION OF SECURITIES
Section
10.1. Optional
Redemption.
Section
10.2. Special
Event
Redemption.
Section
10.3. Notice of
Redemption; Selection
of Debentures.
Section
10.4. Payment
of Debentures Called for
Redemption.
ARTICLE
XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section
11.1. Company
May Consolidate, etc., on
Certain Terms.
Section
11.2. Successor
Entity to be
Substituted.
Section
11.3. Opinion
of Counsel to be Given to
Trustee.
ARTICLE
XII. SATISFACTION AND DISCHARGE OF INDENTURE
Section
12.1. Discharge
of
Indenture.
Section
12.2. Deposited
Moneys to be Held in
Trust by Trustee.
Section
12.3. Paying Agent
to Repay Moneys
Held.
Section
12.4. Return of
Unclaimed
Moneys.
ARTICLE
XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
Section
13.1. Indenture
and Debentures Solely
Corporate Obligations.
ARTICLE
XIV. MISCELLANEOUS PROVISIONS
Section
14.1. Successors.
Section
14.2. Official
Acts by Successor
Entity.
Section
14.3. Surrender
of Company
Powers.
Section
14.4. Addresses
for Notices,
etc.
Section
14.5. Governing
Law.
Section
14.6. Evidence
of Compliance with
Conditions Precedent.
Section
14.7. Table of
Contents, Headings,
etc.
Section
14.8. Execution
in
Counterparts.
Section
14.9. Separability.
Section
14.10. Assignment.
Section
14.11. Acknowledgment
of
Rights.
ARTICLE
XV. SUBORDINATION OF DEBENTURES
Section
15.1. Agreement
to
Subordinate.
Section
15.2. Default
on Senior
Indebtedness.
Section
15.3. Liquidation,
Dissolution,
Bankruptcy.
Section
15.4. Subrogation.
Section
15.5. Trustee
to Effectuate
Subordination.
Section
15.6. Notice by
the
Company.
Section
15.7. Rights of
the Trustee; Holders of
Senior Indebtedness.
Section
15.8. Subordination
May Not Be
Impaired.
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|
Exhibit
A Form
of Fixed/Floating Rate Junior Subordinated Deferrable Interest
Debenture
Exhibit
B Form
of Certificate to Trustee
Exhibit
C Form
of Quarterly Report
THIS
INDENTURE, dated as of October 31, 2007, between Community Bancorp., a
Vermont corporation (the “Company”), and Wilmington Trust Company, a
Delaware banking corporation, as debenture trustee (the
“Trustee”).
WITNESSETH:
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance
of its Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2037 (the “Debentures”) under this Indenture to provide, among other
things, for the execution and authentication, delivery and administration
thereof, and the Company has duly authorized the execution of this Indenture;
and
WHEREAS,
all acts and things necessary to make this Indenture a valid agreement according
to its terms, have been done and performed;
NOW,
THEREFORE, This Indenture Witnesseth:
In
consideration of the premises, and the purchase of the Debentures by the
holders
thereof, the Company covenants and agrees with the Trustee for the equal
and
proportionate benefit of the respective holders from time to time of the
Debentures as follows:
ARTICLE
I.
DEFINITIONS
Section
1.1. Definitions.
The
terms
defined in this Section 1.1 (except as herein otherwise expressly provided
or unless the context otherwise requires) for all purposes of this Indenture
and
of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms
in
accordance with generally accepted accounting principles and the term “generally
accepted accounting principles” means such accounting principles as are
generally accepted in the United States at the time of any
computation. The words “herein,” “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
“Acceleration
Event of Default” means an Event of Default under Section 5.1(a), (d),
(e) or (f), whatever the reason for such Acceleration Event of Default and
whether it shall be voluntary or involuntary or be effected by operation
of law
or pursuant to any judgment, decree or order of any court or any order, rule
or
regulation of any administrative or governmental body.
“Additional
Interest” has the meaning set forth in Section 2.11.
“Additional
Junior Indebtedness” means, without duplication and other than the
Debentures, any indebtedness, liabilities or obligations of the Company,
or any
Subsidiary of the Company, under debt securities (or guarantees in respect
of
debt securities) initially issued after the date of this Indenture to any
trust,
or a trustee of a trust, partnership or other entity affiliated with the
Company
that is, directly or indirectly, a finance subsidiary (as such term is defined
in Rule 3a-5 under the Investment Company Act of 1940) or other financing
vehicle of the Company or any Subsidiary of the Company in connection with
the
issuance by that entity of preferred securities or other securities that
are
eligible to qualify for Tier 1 capital treatment (or its then equivalent)
for purposes of the capital adequacy guidelines of the Federal Reserve, as
then
in effect and applicable to the Company (or, if the Company is not a bank
holding company, such guidelines applied to the Company as if the Company
were
subject to such guidelines); provided, however, that the inability
of the Company to treat all or any portion of the Additional Junior Indebtedness
as Tier 1 capital shall not disqualify it as Additional Junior Indebtedness
if such inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve now or may hereafter accord Tier 1
capital treatment (including the Debentures) in excess of the amount which
may
qualify for treatment as Tier 1 capital under applicable capital adequacy
guidelines.
“Additional
Sums” has the meaning set forth in Section 3.6.
“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.
“Authenticating
Agent” means any agent or agents of the Trustee which at the time shall be
appointed and acting pursuant to Section 6.12.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for
the relief of debtors.
“Board
of Directors” means the board of directors or the executive committee or any
other duly authorized designated officers of the Company.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
“Business
Day” means any day other than a Saturday, Sunday or any other day on which
banking institutions in New York City or Wilmington, Delaware are permitted
or
required by any applicable law or executive order to close.
“Capital
Securities” means undivided beneficial interests in the assets of the Trust
which rank paripassu with Common Securities issued by the
Trust; provided, however, that upon the occurrence and continuance
of an Event of Default (as defined in the Declaration), the rights of holders
of
such Common Securities to payment in respect of distributions and payments
upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
“Capital
Securities Guarantee” means the guarantee agreement that the Company enters
into with Wilmington Trust Company, as guarantee trustee, or other Persons
that
operates directly or indirectly for the benefit of holders of Capital Securities
of the Trust.
“Capital
Treatment Event” means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of any amendment to, or change (including any announced
prospective change) in, the laws, rules or regulations of the United States
or
any political subdivision thereof or therein, or as the result of any official
or administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or
which
pronouncement, action or decision is announced on or after the date of original
issuance of the Debentures, there is more than an insubstantial risk that
the
Company will not, within 90 days of the date of such opinion, be entitled
to
treat an amount equal to the aggregate liquidation amount of the Capital
Securities as “Tier 1 Capital” (or its then equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company (or if the Company is not a bank holding company
or
otherwise is not subject to the Federal Reserve’s risk-based capital adequacy
guidelines, such guidelines applied to the Company as if the Company were
subject to such guidelines); provided, however, that the inability
of the Company to treat all or any portion of the liquidation amount of the
Capital Securities as Tier l Capital shall not constitute the basis for a
Capital Treatment Event, if such inability results from the Company having
cumulative preferred stock, minority interests in consolidated subsidiaries,
or
any other class of security or interest which the Federal Reserve or OTS,
as
applicable, may now or hereafter accord Tier 1 Capital treatment in excess
of the amount which may now or hereafter qualify for treatment as Tier 1
Capital under applicable capital adequacy guidelines;
providedfurther, however, that the distribution of
Debentures in connection with the liquidation of the Trust shall not in and
of
itself constitute a Capital Treatment Event unless such liquidation shall
have
occurred in connection with a Tax Event or an Investment Company
Event.
“Certificate”
means a certificate signed by any one of the principal executive officer,
the
principal financial officer or the principal accounting officer of the
Company.
“Common
Securities” means undivided beneficial interests in the assets of the Trust
which rank pari passu with Capital Securities issued by the Trust;
provided, however, that upon the occurrence and continuance of an
Event of Default (as defined in the Declaration), the rights of holders of
such
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
“Company”
means Community Bancorp., a Vermont corporation, and, subject to the provisions
of Article XI, shall include its successors and assigns.
“Comparable
Treasury Issue” means with respect to any Special Redemption Date the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Fixed Rate Period Remaining Life that would be utilized,
at
the time of selection and in accordance with customary financial practice,
in
pricing new issues of corporate debt securities of comparable maturity to
the
Fixed Rate Period Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before
to
three months after the Interest Payment Date in December 2012, the two most
closely corresponding fixed, non-callable United States Treasury securities,
as
selected by the Quotation Agent, shall be used as the Comparable Treasury
Issue,
and the Treasury Rate shall be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month using such securities.
“Comparable
Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest
and
lowest such Reference Treasury Dealer Quotations, or (b) if the Quotation
Agent
obtains fewer than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
“Coupon
Rate” has the meaning set forth in Section 2.8.
“Debenture”
or “Debentures” has the meaning stated in the first recital of this
Indenture.
“Debenture
Register” has the meaning specified in Section 2.5.
“Declaration”
means the Amended and Restated Declaration of Trust of the Trust, as amended
or
supplemented from time to time.
“Default”
means any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
“Defaulted
Interest” has the meaning set forth in Section 2.8.
“Determination
Date” has the meaning set forth in Section 2.10.
“Distribution
Period” means (i) with respect to interest paid on the first Interest
Payment Date, the period beginning on (and including) the date of original
issuance and ending on (but excluding) the Interest Payment Date in December
2007 and (ii) thereafter, with respect to interest paid on each successive
Interest Payment Date, the period beginning on (and including) the preceding
Interest Payment Date and ending on (but excluding) such current Interest
Payment Date.
“Event
of Default” means any event specified in Section 5.1, continued for the
period of time, if any, and after the giving of the notice, if any, therein
designated.
“Extension
Period” has the meaning set forth in Section 2.11.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System, or its
designated district bank, as applicable, and any successor federal agency
that
is primarily responsible for regulating the activities of bank holding
companies.
“Fixed
Rate Period Remaining Life” means, with respect to any Debenture, the period
from the Special Redemption Date for such Debenture to the Interest Payment
Date
in December 2012.
“Indenture”
means this instrument as originally executed or, if amended or supplemented
as
herein provided, as so amended or supplemented, or both.
“Institutional
Trustee” has the meaning set forth in the Declaration.
“Interest
Payment Date” means March 15, June 15, September 15 and
December 15 of each year during the term of this Indenture, or if such day
is not a Business Day, then the next succeeding Business Day (it being
understood that interest accrues for any such non-Business Day during the
applicable Distribution Period, beginning on or after December 15, 2012),
commencing in December 2007.
“Interest
Rate” means for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment
Date in December 2012 the rate per annum of 7.56%, and for each Distribution
Period beginning on or after the Interest Payment Date in December 2012,
the
Coupon Rate for such Distribution Period.
“Investment
Company Event” means the receipt by the Company and the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of
the
occurrence of a change in law or regulation or written change (including
any
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or,
within
90 days of the date of such opinion will be considered an “investment company”
that is required to be registered under the Investment Company Act of 1940,
as
amended which change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of the issuance of the
Debentures.
“Liquidation
Amount” means the stated amount of $1,000.00 per Trust
Security.
“Maturity
Date” means December 15, 2037.
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the Vice Chairman, the President, any Managing Director
or any Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 14.6 if and to the
extent required by the provisions of such Section.
“Opinion
of Counsel” means an opinion in writing signed by legal counsel, who may be
an employee of or counsel to the Company, or may be other counsel reasonably
satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 14.6 if and to the extent required by
the provisions of such Section.
“OTS”
means the Office of Thrift Supervision and any successor federal agency that
is
primarily responsible for regulating the activities of savings and loan holding
companies.
The
term
“outstanding,” when used with reference to Debentures, means, subject to
the provisions of Section 7.4, as of any particular time, all Debentures
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except:
(a) Debentures
theretofore canceled by the Trustee or the Authenticating Agent or delivered
to
the Trustee for cancellation;
(b) Debentures,
or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with
any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent); provided, however, that, if such Debentures, or portions
thereof, are to be redeemed prior to maturity thereof, notice of such redemption
shall have been given as provided in Section 10.3 or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Debentures
paid pursuant to Section 2.6 or in lieu of or in substitution for which
other Debentures shall have been authenticated and delivered pursuant to
the
terms of Section 2.6 unless proof satisfactory to the Company and the
Trustee is presented that any such Debentures are held by bona fide holders
in
due course.
“Person”
means any individual, corporation, limited liability company, partnership,
joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Predecessor
Security” of any particular Debenture means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for purposes of this definition, any Debenture
authenticated and delivered under Section 2.6 in lieu of a lost, destroyed
or stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
“Primary
Treasury Dealer” means either a nationally recognized primary United States
Government securities dealer or an entity of recognized standing in matters
pertaining to the quotation of treasury securities that is reasonably acceptable
to the Company and the Trustee.
“Principal
Office of the Trustee,” or other similar term, means the office of the
Trustee, at which at any particular time its corporate trust business shall
be
principally administered, which at the time of the execution of this Indenture
shall be Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600, Attention: Corporate Trust
Administration.
“Quotation
Agent” means a designee of the Institutional Trustee who shall be a Primary
Treasury Dealer.
“Redemption
Date” has the meaning set forth in Section 10.1.
“Redemption
Price” means 100% of the principal amount of the Debentures being redeemed,
plus accrued and unpaid interest (including any Additional Interest) on such
Debentures to the Redemption Date.
“Reference
Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the
Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Quotation
Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to
the
Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York
City
time, on the third Business Day preceding such Redemption Date.
“Responsible
Officer” means, with respect to the Trustee, any officer within the
Principal Office of the Trustee, including any vice-president, any assistant
vice-president, any secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or other officer of the Principal
Trust
Office of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“Reuters
Page LIBOR01” has the meaning set forth in Section 2.10.
“Securities
Act” means the Securities Act of 1933, as amended from time to time or any
successor legislation.
“Securityholder,”
“holder of Debentures,” or other similar terms, means any Person in whose name
at the time a particular Debenture is registered on the register kept by
the
Company or the Trustee for that purpose in accordance with the terms
hereof.
“Senior
Indebtedness” means, with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of the Company
for all borrowed and purchased money and (B) indebtedness evidenced by
securities, debentures, notes, bonds or other similar instruments issued
by the
Company; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price
of
property, all conditional sale obligations of the Company and all obligations
of
the Company under any title retention agreement; (iv) all obligations of
the Company for the reimbursement of any letter of credit, any banker’s
acceptance, any security purchase facility, any repurchase agreement or similar
arrangement, any interest rate swap, any other hedging arrangement, any
obligation under options or any similar credit or other transaction;
(v) all obligations of the Company associated with derivative products such
as interest and foreign exchange rate contracts, commodity contracts, and
similar arrangements; (vi) all obligations of the type referred to in
clauses (i) through (v) above of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise including,
without limitation, similar obligations arising from off-balance sheet
guarantees and direct credit substitutes; and (vii) all obligations of the
type referred to in clauses (i) through (vi) above of other Persons secured
by any lien on any property or asset of the Company (whether or not such
obligation is assumed by the Company), whether incurred on or prior to the
date
of this Indenture or thereafter incurred. Notwithstanding the
foregoing, “Senior Indebtedness” shall not include (1) any Additional
Junior Indebtedness, (2) Debentures issued pursuant to this Indenture and
guarantees in respect of such Debentures, (3) trade accounts payable of the
Company arising in the ordinary course of business (such trade accounts payable
being pari passu in right of payment to the Debentures), or
(4) obligations with respect to which (a) in the instrument creating
or evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are pari passu, junior or otherwise not
superior in right of payment to the Debentures and (b) the Company, prior
to the issuance thereof, has notified (and, if then required under the
applicable guidelines of the regulating entity, has received approval from)
the
Federal Reserve (if the Company is a bank holding company) or the OTS (if
the
Company is a savings and loan holding company). Senior Indebtedness
shall continue to be Senior Indebtedness and be entitled to the subordination
provisions irrespective of any amendment, modification or waiver of any term
of
such Senior Indebtedness.
“Special
Event” means any of a Capital Treatment Event, an Investment Company Event
or a Tax Event.
“Special
Redemption Date” has the meaning set forth in Section 10.2.
“Special
Redemption Price” means (a) if the Special Redemption Date occurs
before the Interest Payment Date in December 2012, the greater of
(i) 107.5% of the principal amount of the Debentures, plus accrued and
unpaid interest (including Additional Interest) on the Debentures to the
Special
Redemption Date, or (ii) as determined by the Quotation Agent, (A) the
sum of the present values of the scheduled payments of principal and interest
on
the Debentures during the Fixed Rate Period Remaining Life of the Debentures
(assuming the Debentures matured on the Interest Payment Date in December
2012)
discounted to the Special Redemption Date on a quarterly basis (assuming
a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus
(B) accrued and unpaid interest (including Additional Interest) on the
Debentures to such Special Redemption Date, or (b) if the Special
Redemption Date occurs on or after the Interest Payment Date in December
2012,
100% of the principal amount of the Debentures being redeemed, plus accrued
and
unpaid interest (including any Additional Interest) on such Debentures to
the
Special Redemption Date.
“Subsidiary”
means with respect to any Person, (i) any corporation at least a majority
of the outstanding voting stock of which is owned, directly or indirectly,
by
such Person or by one or more of its Subsidiaries, or by such Person and
one or
more of its Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of the outstanding partnership or similar
interests of which shall at the time be owned by such Person, or by one or
more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and
(iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this
definition, “voting stock” means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or
the
equivalent) of such Person, other than shares, interests, participations
or
other equivalents having such power only by reason of the occurrence of a
contingency.
“Tax
Event” means the receipt by the Company and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the
laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations) (an “Administrative Action”) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in
connection with a proceeding involving the Company or the Trust and whether
or
not subject to review or appeal, which amendment, clarification, change,
Administrative Action or decision is enacted, promulgated or announced, in
each
case on or after the date of original issuance of the Debentures, there is
more
than an insubstantial risk that: (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the Debentures;
(ii) interest payable by the Company on the Debentures is not, or within
90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes;
or
(iii) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties
or
other governmental charges.
“3-Month
LIBOR” has the meaning set forth in Section 2.10.
“Treasury
Rate” means (i) the yield, under the heading which represents the average
for the week immediately prior to the date of calculation, appearing in the
most
recently published statistical release designated H.15 (519) or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Fixed Rate Period Remaining Life (if no maturity
is within three months before or after the Fixed Rate Period Remaining Life,
yields for the two published maturities most closely corresponding to the
Fixed
Rate Period Remaining Life shall be determined and the Treasury Rate shall
be
interpolated or extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor release)
is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield
to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Special Redemption
Date. The Treasury Rate shall be calculated by the Quotation Agent on
the third Business Day preceding the Special Redemption Date.
“Trust”
shall mean CMTV Statutory Trust I, a Delaware statutory trust, or any other
similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debentures under this Indenture, of which
the
Company is the sponsor.
“Trust
Securities” means Common Securities and Capital Securities of the
Trust.
“Trustee”
means Wilmington Trust Company, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns as Trustee
hereunder.
ARTICLE
II.
DEBENTURES
Section
2.1. Authentication
and Dating.
Upon
the
execution and delivery of this Indenture, or from time to time thereafter,
Debentures in an aggregate principal amount not in excess of $12,887,000.00
may
be executed and delivered by the Company to the Trustee for authentication,
and
the Trustee, upon receipt of a written authentication order from the Company,
shall thereupon authenticate and make available for delivery said Debentures
to
or upon the written order of the Company, signed by its Chairman of the Board
of
Directors, Chief Executive Officer, Vice Chairman, the President, one of
its
Managing Directors or one of its Vice Presidents without any further action
by
the Company hereunder. Notwithstanding anything to the contrary
contained herein, the Trustee shall be fully protected in relying upon the
aforementioned authentication order and written order in authenticating and
delivering said Debentures. In authenticating such Debentures, and
accepting the additional responsibilities under this Indenture in relation
to
such Debentures, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon:
(a) a
copy of
any Board Resolution or Board Resolutions relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such resolution, in
each
case certified by the Secretary or an Assistant Secretary of the Company,
as the
case may be; and
(b) an
Opinion of Counsel prepared in accordance with Section 14.6 which shall
also state:
(1) that
such
Debentures, when authenticated and delivered by the Trustee and issued by
the
Company in each case in the manner and subject to any conditions specified
in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, subject to or limited by applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, moratorium and other statutory
or
decisional laws relating to or affecting creditors’ rights or the reorganization
of financial institutions (including, without limitation, preference and
fraudulent conveyance or transfer laws), heretofore or hereafter enacted
or in
effect, affecting the rights of creditors generally; and
(2) that
all
laws and requirements in respect of the execution and delivery by the Company
of
the Debentures have been complied with and that authentication and delivery
of
the Debentures by the Trustee will not violate the terms of this
Indenture.
The
Trustee shall have the right to decline to authenticate and deliver any
Debentures under this Section if the Trustee, being advised in writing by
counsel, determines that such action may not lawfully be taken or if a
Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to existing
holders.
The
definitive Debentures shall be typed, printed, lithographed or engraved on
steel
engraved borders or may be produced in any other manner, all as determined
by
the officers executing such Debentures, as evidenced by their execution of
such
Debentures.
Section
2.2. Form
of Trustee’s Certificate of
Authentication.
The
Trustee’s certificate of authentication on all Debentures shall be in
substantially the following form:
This
is
one of the Debentures referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY, as Trustee
By
Authorized
Signer
Section
2.3. Form
and Denomination of Debentures.
The
Debentures shall be substantially in the form of Exhibit A attached
hereto. The Debentures shall be in registered, certificated form
without coupons and in minimum denominations of $100,000.00 and any multiple
of
$1,000.00 in excess thereof. Any attempted transfer of the Debentures
in a block having an aggregate principal amount of less than $100,000.00
shall
be deemed to be void and of no legal effect whatsoever. Any such
purported transferee shall be deemed not to be a holder of such Debentures
for
any purpose, including, but not limited to the receipt of payments on such
Debentures, and such purported transferee shall be deemed to have no interest
whatsoever in such Debentures. The Debentures shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with
such
plans as the officers executing the same may determine with the approval
of the
Trustee as evidenced by the execution and authentication thereof.
Section
2.4. Execution
of Debentures.
The
Debentures shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors,
Chief
Executive Officer, Vice Chairman, President, one of its Managing Directors
or
one of its Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents. Only such Debentures as shall bear thereon a certificate
of authentication substantially in the form herein before recited, executed
by
the Trustee or the Authenticating Agent by the manual signature of an authorized
signer, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to
the
benefits of this Indenture.
In
case
any officer of the Company who shall have signed any of the Debentures shall
cease to be such officer before the Debentures so signed shall have been
authenticated and delivered by the Trustee or the Authenticating Agent, or
disposed of by the Company, such Debentures nevertheless may be authenticated
and delivered or disposed of as though the Person who signed such Debentures
had
not ceased to be such officer of the Company; and any Debenture may be signed
on
behalf of the Company by such Persons as, at the actual date of the execution
of
such Debenture, shall be the proper officers of the Company, although at
the
date of the execution of this Indenture any such person was not such an
officer.
Every
Debenture shall be dated the date of its authentication.
Section
2.5. Exchange
and Registration of Transfer of
Debentures.
The
Company shall cause to be kept, at the office or agency maintained for the
purpose of registration of transfer and for exchange as provided in
Section 3.2, a register (the “Debenture Register”) for the
Debentures issued hereunder in which, subject to such reasonable regulations
as
it may prescribe, the Company shall provide for the registration and transfer
of
all Debentures as in this Article II provided. The Debenture
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
Debentures
to be exchanged may be surrendered at the Principal Office of the Trustee
or at
any office or agency to be maintained by the Company for such purpose as
provided in Section 3.2, and the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debenture
or Debentures which the Securityholder making the exchange shall be entitled
to
receive. Upon due presentment for registration of transfer of any
Debenture at the Principal Office of the Trustee or at any office or agency
of
the Company maintained for such purpose as provided in Section 3.2, the
Company shall execute, the Company or the Trustee shall register and the
Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in the name of the transferee or transferees a new Debenture for a like
aggregate principal amount. Registration or registration of transfer
of any Debenture by the Trustee or by any agent of the Company appointed
pursuant to Section 3.2, and delivery of such Debenture, shall be deemed to
complete the registration or registration of transfer of such
Debenture.
All
Debentures presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating
Agent)
be duly endorsed by, or be accompanied by a written instrument or instruments
of
transfer in form satisfactory to the Company and the Trustee or the
Authenticating Agent duly executed by the holder or his attorney duly authorized
in writing.
No
service charge shall be made for any exchange or registration of transfer
of
Debentures, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The
Company or the Trustee shall not be required to exchange or register a transfer
of any Debenture for a period of 15 days next preceding the date of
selection of Debentures for redemption.
Notwithstanding
anything herein to the contrary, Debentures may not be transferred except
in
compliance with the restricted securities legend set forth below, unless
otherwise determined by the Company, upon the advice of counsel expert in
securities law, in accordance with applicable law:
THIS
SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE
UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT
INSURANCE CORPORATION.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.
THE
HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR
ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION
OR
ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL
NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN
$100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL
AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT
IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
Section
2.6. Mutilated,
Destroyed, Lost or Stolen Debentures.
In
case
any Debenture shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debenture bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture, or
in
lieu of and in substitution for the Debenture so destroyed, lost or
stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and the Trustee such security or indemnity as may
be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company
and
the Trustee evidence to their satisfaction of the destruction, loss or theft
of
such Debenture and of the ownership thereof.
The
Trustee may authenticate any such substituted Debenture and deliver the same
upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Debenture, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debenture which has matured
or is about to mature or has been called for redemption in full shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the applicant
for such payment shall furnish to the Company and the Trustee such security
or
indemnity as may be required by them to save each of them harmless and, in
case
of destruction, loss or theft, evidence satisfactory to the Company and to
the
Trustee of the destruction, loss or theft of such Debenture and of the ownership
thereof.
Every
substituted Debenture issued pursuant to the provisions of this Section 2.6
by virtue of the fact that any such Debenture is destroyed, lost or stolen
shall
constitute an additional contractual obligation of the Company, whether or
not
the destroyed, lost or stolen Debenture shall be found at any time, and shall
be
entitled to all the benefits of this Indenture equally and proportionately
with
any and all other Debentures duly issued hereunder. All Debentures
shall be held and owned upon the express condition that, to the extent permitted
by applicable law, the foregoing provisions are exclusive with respect to
the
replacement or payment of mutilated, destroyed, lost or stolen Debentures
and
shall preclude any and all other rights or remedies notwithstanding any law
or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section
2.7. Temporary
Debentures.
Pending
the preparation of definitive Debentures, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debentures
that are typed, printed or lithographed. Temporary Debentures shall
be issuable in any authorized denomination, and substantially in the form
of the
definitive Debentures in lieu of which they are issued but with such omissions,
insertions and variations as may be appropriate for temporary Debentures,
all as
may be determined by the Company. Every such temporary Debenture
shall be executed by the Company and be authenticated by the Trustee upon
the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Debentures. Without unreasonable delay the Company
will execute and deliver to the Trustee or the Authenticating Agent definitive
Debentures and thereupon any or all temporary Debentures may be surrendered
in
exchange therefor, at the principal corporate trust office of the Trustee
or at
any office or agency maintained by the Company for such purpose as provided
in
Section 3.2, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange for such temporary Debentures
a like
aggregate principal amount of such definitive Debentures. Such
exchange shall be made by the Company at its own expense and without any
charge
therefor except that in case of any such exchange involving a registration
of
transfer the Company may require payment of a sum sufficient to cover any
tax,
fee or other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Debentures shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debentures authenticated and delivered hereunder.
Section
2.8. Payment
of Interest and Additional Interest.
Interest
at the Interest Rate and any Additional Interest on any Debenture that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date for Debentures shall be paid to the Person in whose name said Debenture
(or
one or more Predecessor Securities) is registered at the close of business
on
the regular record date for such interest installment except that interest
and
any Additional Interest payable on the Maturity Date shall be paid to the
Person
to whom principal is paid.
Each
Debenture shall bear interest for the period beginning on (and including)
the
date of original issuance and ending on (but excluding) the Interest Payment
Date in December 2012 at a rate per annum of 7.56%, and shall bear interest
for
each successive Distribution Period beginning on or after the Interest Payment
Date in December 2012 at a rate per annum equal to the 3-Month LIBOR, determined
as described in Section 2.10, plus 2.85% (the “Coupon Rate”),
applied to the principal amount thereof, until the principal thereof becomes
due
and payable, and on any overdue principal and to the extent that payment
of such
interest is enforceable under applicable law (without duplication) on any
overdue installment of interest (including Additional Interest) at the Interest
Rate in effect for each applicable period compounded
quarterly. Interest shall be payable (subject to any relevant
Extension Period) quarterly in arrears on each Interest Payment Date with
the
first installment of interest to be paid on the Interest Payment Date in
December 2007.
Any
interest on any Debenture, including Additional Interest, that is payable,
but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of
having
been such holder; and such Defaulted Interest shall be paid by the Company
to
the Persons in whose names such Debentures (or their respective Predecessor
Securities) are registered at the close of business on a special record date
for
the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing at least 25 days
prior
to the date of the proposed payment of the amount of Defaulted Interest proposed
to be paid on each such Debenture and the date of the proposed payment, and
at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit
prior to the date of the proposed payment, such money when deposited to be
held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as
in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be
more
than 15 nor less than 10 days prior to the date of the proposed payment and
not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each
Securityholder at its address as it appears in the Debenture Register, not
less
than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the
Persons in whose names such Debentures (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable.
The
Company may make payment of any Defaulted Interest on any Debentures in any
other lawful manner after notice given by the Company to the Trustee of the
proposed payment method; provided, however, the Trustee in its
sole discretion deems such payment method to be practical.
Any
interest (including Additional Interest) scheduled to become payable on an
Interest Payment Date occurring during an Extension Period shall not be
Defaulted Interest and shall be payable on such other date as may be specified
in the terms of such Debentures.
The
term
“regular record date” as used in this Section shall mean the close of business
on the 15th Business Day preceding the applicable Interest Payment
Date.
Subject
to the foregoing provisions of this Section, each Debenture delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu
of any
other Debenture shall carry the rights to interest accrued and unpaid, and
to
accrue, that were carried by such other Debenture.
Section
2.9. Cancellation
of Debentures Paid, etc.
All
Debentures surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debentures shall be issued in lieu thereof except
as
expressly permitted by any of the provisions of this Indenture. All
Debentures canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debentures unless the
Company otherwise directs the Trustee in writing. If the Company
shall acquire any of the Debentures, however, such acquisition shall not
operate
as a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are surrendered to the Trustee for
cancellation.
Section
2.10. Computation
of Interest.
The
amount of interest payable (i) for any Distribution Period commencing on or
after the date of original issuance but before the Interest Payment Date
in
December 2012 will be computed on the basis of a 360-day year of twelve 30-day
months, and (ii) for the Distribution Period commencing on the Interest
Payment Date in December 2012 and each succeeding Distribution Period will
be
calculated by applying the Interest Rate to the principal amount outstanding
at
the commencement of the Distribution Period on the basis of the actual number
of
days in the Distribution Period concerned divided by 360. All
percentages resulting from any calculations on the Debentures will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545%
(or
.09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent
(with
one-half cent being rounded upward)).
(a) “3-Month
LIBOR” means the London interbank offered interest rate for three-month,
U.S. dollar deposits determined by the Trustee in the following order of
priority:
(1) the
rate (expressed as a percentage per annum) for U.S. dollar deposits having
a
three-month maturity that appears on Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on the related Determination Date (as defined
below). “Reuters Page LIBOR01” means the display designated as
“LIBOR01” on Reuters or such other page as may replace Reuters Page LIBOR01 on
that service or such other service or services as may be nominated by the
British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits;
(2) if
such rate cannot be identified on the related Determination Date, the Trustee
will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such
quotations;
(3) if
fewer than two such quotations are provided as requested in clause (2)
above, the Trustee will request four major New York City banks to provide
such
banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on
such Determination Date. If at least two such quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and
(4) if
fewer than two such quotations are provided as requested in clause (3)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution
Period.
If
the
rate for U.S. dollar deposits having a three-month maturity that initially
appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the
related Determination Date is superseded on the Reuters Page LIBOR01 by a
corrected rate by 12:00 noon (London time) on such Determination Date, then
the corrected rate as so substituted on the applicable page will be the
applicable 3-Month LIBOR for such Determination Date.
(b) The
Interest Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
(c) “Determination
Date” means the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in the London
interbank market) preceding the particular Distribution Period for which
a
Coupon Rate is being determined.
(d) The
Trustee shall notify the Company, the Institutional Trustee and any securities
exchange or interdealer quotation system on which the Capital Securities
are
listed, of the Coupon Rate and the Determination Date for each Distribution
Period, in each case as soon as practicable after the determination thereof
but
in no event later than the thirtieth (30th) day of the relevant Distribution
Period. Failure to notify the Company, the Institutional Trustee or
any securities exchange or interdealer quotation system, or any defect in
said
notice, shall not affect the obligation of the Company to make payment on
the
Debentures at the applicable Coupon Rate. Any error in the
calculation of the Coupon Rate by the Trustee may be corrected at any time
by
notice delivered as above provided. Upon the request of a holder of a
Debenture, the Trustee shall provide the Coupon Rate then in effect and,
if
determined, the Coupon Rate for the next Distribution Period.
(e) Subject
to the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions relating to
the
payment and calculation of interest on the Debentures and distributions on
the
Capital Securities by the Trustee or the Institutional Trustee will (in the
absence of willful default, bad faith and manifest error) be final, conclusive
and binding on the Trust, the Company and all of the holders of the Debentures
and the Capital Securities, and no liability shall (in the absence of willful
default, bad faith or manifest error) attach to the Trustee or the Institutional
Trustee in connection with the exercise or non-exercise by either of them
or
their respective powers, duties and discretion.
Section
2.11. Extension
of Interest Payment Period.
So
long
as no Acceleration Event of Default has occurred and is continuing, the Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debentures by extending the
interest payment period on the Debentures at any time and from time to time
during the term of the Debentures, for up to 20 consecutive quarterly
periods (each such extended interest payment period, an “Extension
Period”), during which Extension Period no interest (including Additional
Interest) shall be due and payable (except any Additional Sums that may be
due
and payable). No Extension Period may end on a date other than an
Interest Payment Date. During an Extension Period, interest will
continue to accrue on the Debentures, and interest on such accrued interest
will
accrue at an annual rate equal to the Interest Rate in effect for such Extension
Period, compounded quarterly from the date such interest would have been
payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). At the
end of any such Extension Period the Company shall pay all interest then
accrued
and unpaid on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond the
Maturity Date; providedfurther, however, that during any
such Extension Period, the Company shall not and shall not permit any Affiliate
to (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
the
Company’s or such Affiliate’s capital stock (other than payments of dividends or
distributions to the Company or payments of dividends from direct or indirect
subsidiaries of the Company to their parent corporations, which also shall
be
direct or indirect subsidiaries of the Company) or make any guarantee payments
with respect to the foregoing or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company or any Affiliate that rank pari passu in all
respects with or junior in interest to the Debentures (other than, with respect
to clauses (i) or (ii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with
any
employment contract, benefit plan or other similar arrangement with or for
the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan
or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration
in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or series
of the Company’s indebtedness for any class or series of the Company’s capital
stock, (c) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of
a dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in
the form of stock, warrants, options or other rights where the dividend stock
or
the stock issuable upon exercise of such warrants, options or other rights
is
the same stock as that on which the dividend is being paid or ranks pari
passu
with or junior to such stock and any cash payments in lieu of fractional
shares
issued in connection therewith, (f) payments of principal or interest on
debt securities or payments of cash dividends or distributions on any capital
stock issued by an Affiliate that is not, in whole or in part, a subsidiary
of
the Company (or any redemptions, repurchases or liquidation payments on such
stock or securities), or (g) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the
Company may further extend such period, provided that such period together
with
all such previous and further consecutive extensions thereof shall not exceed
20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional Interest, the Company
may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest to the extent permitted
by
applicable law. The Company must give the Trustee notice of its
election to begin or extend an Extension Period by the close of business
at
least 15 Business Days prior to the Interest Payment Date with respect to
which
interest on the Debentures would have been payable except for the election
to
begin or extend such Extension Period. The Trustee shall give notice
of the Company’s election to begin a new Extension Period to the
Securityholders.
Section
2.12. CUSIP
Numbers.
The
Company in issuing the Debentures may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption
as a convenience to Securityholders; provided, however, that any such notice
may
state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP
numbers.
ARTICLE
III.
PARTICULAR
COVENANTS OF THE COMPANY
Section
3.1. Payment
of Principal, Premium and Interest; Agreed Treatment of the
Debentures.
(a) The
Company covenants and agrees that it will duly and punctually pay or cause
to be
paid the principal of and premium, if any, and interest and any Additional
Interest and other payments on the Debentures at the place, at the respective
times and in the manner provided in this Indenture and the Debentures. Each
installment of interest on the Debentures may be paid (i) by mailing checks
for such interest payable to the order of the holders of Debentures entitled
thereto as they appear on the registry books of the Company if a request
for a
wire transfer has not been received by the Company or (ii) by wire transfer
to any account with a banking institution located in the United States
designated in writing by such Person to the paying agent no later than the
related record date. Notwithstanding the foregoing, so long as the
holder of this Debenture is the Institutional Trustee, the payment of the
principal of and interest on this Debenture will be made in immediately
available funds at such place and to such account as may be designated by
the
Institutional Trustee.
(b) The
Company will treat the Debentures as indebtedness, and the amounts payable
in
respect of the principal amount of such Debentures as interest, for all United
States federal income tax purposes. All payments in respect of such
Debentures will be made free and clear of United States withholding tax to
any
beneficial owner thereof that has provided an Internal Revenue Service Form
W8
BEN (or any substitute or successor form) establishing its non-United States
status for United States federal income tax purposes.
(c) As
of the
date of this Indenture, the Company has no present intention to exercise
its
right under Section 2.11 to defer payments of interest on the Debentures
by
commencing an Extension Period.
(d) As
of the
date of this Indenture, the Company believes that the likelihood that it
would
exercise its right under Section 2.11 to defer payments of interest on the
Debentures by commencing an Extension Period at any time during which the
Debentures are outstanding is remote because of the restrictions that would
be
imposed on the Company’s ability to declare or pay dividends or distributions
on, or to redeem, purchase or make a liquidation payment with respect to,
any of
its outstanding equity and on the Company’s ability to make any payments of
principal of or interest on, or repurchase or redeem, any of its debt securities
that rank pari passu in all respects with (or junior in interest to)
the Debentures.
Section
3.2. Offices
for Notices and Payments, etc.
So
long
as any of the Debentures remain outstanding, the Company will maintain in
Wilmington, Delaware, an office or agency where the Debentures may be presented
for payment, an office or agency where the Debentures may be presented for
registration of transfer and for exchange as in this Indenture provided and
an
office or agency where notices and demands to or upon the Company in respect
of
the Debentures or of this Indenture may be served. The Company will
give to the Trustee written notice of the location of any such office or
agency
and of any change of location thereof. Until otherwise designated
from time to time by the Company in a notice to the Trustee, or specified
as
contemplated by Section 2.5, such office or agency for all of the above purposes
shall be the office or agency of the Trustee. In case the Company
shall fail to maintain any such office or agency in Wilmington, Delaware,
or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served
at the
Principal Office of the Trustee.
In
addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside Wilmington, Delaware, where
the Debentures may be presented for registration of transfer and for exchange
in
the manner provided in this Indenture, and the Company may from time to time
rescind such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any such office
or
agency in Wilmington, Delaware, for the purposes above mentioned. The
Company will give to the Trustee prompt written notice of any such designation
or rescission thereof.
Section
3.3. Appointments
to Fill Vacancies in Trustee’s Office.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section
3.4. Provision
as to Paying Agent.
(a) If
the
Company shall appoint a paying agent other than the Trustee, it will cause
such
paying agent to execute and deliver to the Trustee an instrument in which
such
agent shall agree with the Trustee, subject to the provision of this
Section 3.4,
(1) that
it
will hold all sums held by it as such agent for the payment of the principal
of
and premium, if any, or interest, if any, on the Debentures (whether such
sums
have been paid to it by the Company or by any other obligor on the Debentures)
in trust for the benefit of the holders of the Debentures;
(2) that
it
will give the Trustee prompt written notice of any failure by the Company
(or by
any other obligor on the Debentures) to make any payment of the principal
of and
premium, if any, or interest, if any, on the Debentures when the same shall
be
due and payable; and
(3) that
it
will, at any time during the continuance of any Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in
trust by such paying agent.
(b) If
the
Company shall act as its own paying agent, it will, on or before each due
date
of the principal of and premium, if any, or interest or other payments, if
any,
on the Debentures, set aside, segregate and hold in trust for the benefit
of the
holders of the Debentures a sum sufficient to pay such principal, premium,
interest or other payments so becoming due and will notify the Trustee in
writing of any failure to take such action and of any failure by the Company
(or
by any other obligor under the Debentures) to make any payment of the principal
of and premium, if any, or interest or other payments, if any, on the Debentures
when the same shall become due and payable.
Whenever
the Company shall have one or more paying agents for the Debentures, it will,
on
or prior to each due date of the principal of and premium, if any, or interest,
if any, on the Debentures, deposit with a paying agent a sum sufficient to
pay
the principal, premium, interest or other payments so becoming due, such
sum to
be held in trust for the benefit of the Persons entitled thereto and (unless
such paying agent is the Trustee) the Company shall promptly notify the Trustee
in writing of its action or failure to act.
(c) Anything
in this Section 3.4 to the contrary notwithstanding, the Company may, at
any time, for the purpose of obtaining a satisfaction and discharge with
respect
to the Debentures, or for any other reason, pay, or direct any paying agent
to
pay to the Trustee all sums held in trust by the Company or any such paying
agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything
in this Section 3.4 to the contrary notwithstanding, the agreement to hold
sums in trust as provided in this Section 3.4 is subject to
Sections 12.3 and 12.4.
Section
3.5. Certificate
to Trustee.
The
Company will deliver to the Trustee on or before 120 days after the end of
each fiscal year, so long as Debentures are outstanding hereunder, a Certificate
stating that in the course of the performance by the signers of their duties
as
officers of the Company they would normally have knowledge of any default
during
such fiscal year by the Company in the performance of any covenants contained
herein, stating whether or not they have knowledge of any such default and,
if
so, specifying each such default of which the signers have knowledge and
the
nature and status thereof. A form of this Certificate is attached
hereto as Exhibit B.
Section
3.6. Additional
Sums.
If
and
for so long as the Trust is the holder of all Debentures and the Trust is
required to pay any additional taxes (including withholding taxes), duties,
assessments or other governmental charges as a result of a Tax Event, the
Company will pay such additional amounts (“Additional Sums”) on the
Debentures as shall be required so that the net amounts received and retained
by
the Trust after paying taxes (including withholding taxes), duties, assessments
or other governmental charges will be equal to the amounts the Trust would
have
received if no such taxes, duties, assessments or other governmental charges
had
been imposed. Whenever in this Indenture or the Debentures there is a
reference in any context to the payment of principal of or interest on the
Debentures, such mention shall be deemed to include mention of payments of
the
Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral
of the payment of interest during an Extension Period pursuant to
Section 2.11 shall not defer the payment of any Additional Sums that may be
due and payable.
Section
3.7. Compliance
with Consolidation Provisions.
The
Company will not, while any of the Debentures remain outstanding, consolidate
with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions
of
Article XI hereof are complied with.
Section
3.8. Limitation
on Dividends.
If
Debentures are initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust (regardless
of
whether Debentures continue to be held by such Trust) and (i) there shall
have occurred and be continuing an Event of Default, (ii) the Company shall
be in default with respect to its payment of any obligations under the Capital
Securities Guarantee, or (iii) the Company shall have given notice of its
election to defer payments of interest on the Debentures by extending the
interest payment period as provided herein and such period, or any extension
thereof, shall be continuing, then the Company shall not, and shall not allow
any Affiliate of the Company to, (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or its Affiliates’ capital
stock (other than payments of dividends or distributions to the Company or
payments of dividends from direct or indirect subsidiaries of the Company
to
their parent corporations, which also shall be direct or indirect subsidiaries
of the Company) or make any guarantee payments with respect to the foregoing
or
(y) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company or any Affiliate
that rank pari passu in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (x) and (y)
above, (1) repurchases, redemptions or other acquisitions of
shares of capital stock of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit
of
one or more employees, officers, directors or consultants, in connection
with a
dividend reinvestment or stockholder stock purchase plan or in connection
with
the issuance of capital stock of the Company (or securities convertible into
or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, if any,
(2) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or series
of the Company’s indebtedness for any class or series of the Company’s capital
stock, (3) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (4) any declaration of
a dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (5) any dividend in
the form of stock, warrants, options or other rights where the dividend stock
or
the stock issuable upon exercise of such warrants, options or other rights
is
the same stock as that on which the dividend is being paid or ranks pari
passu
with or junior to such stock and any cash payments in lieu of fractional
shares
issued in connection therewith, (6) payments of principal or interest on
debt securities or payments of cash dividends or distributions on any capital
stock issued by an Affiliate that is not, in whole or in part, a subsidiary
of
the Company (or any redemptions, repurchases or liquidation payments on such
stock or securities), or (7) payments under the Capital Securities
Guarantee).
Section
3.9. Covenants
as to the Trust.
For
so
long as the Trust Securities remain outstanding, the Company shall maintain
100%
ownership of the Common Securities; provided, however, that any
permitted successor of the Company under this Indenture may succeed to the
Company’s ownership of such Common Securities. The Company, as owner
of the Common Securities, shall, except in connection with a distribution
of
Debentures to the holders of Trust Securities in liquidation of the Trust,
the
redemption of all of the Trust Securities or certain mergers, consolidations
or
amalgamations, each as permitted by the Declaration, cause the
Trust (a) to remain a statutory trust, (b) to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes, and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debentures.
Section
3.10. Additional
Junior Indebtedness.
The
Company shall not, and it shall not cause or permit any Subsidiary of the
Company to, incur, issue or be obligated on any Additional Junior Indebtedness,
either directly or indirectly, by way of guarantee, suretyship or otherwise,
other than Additional Junior Indebtedness (i) that, by its terms, is
expressly stated to be either junior and subordinate or pari passu in
all respects to the Debentures, and (ii) of which the Company has notified
(and, if then required under the applicable guidelines of the regulating
entity,
has received approval from) the Federal Reserve, if the Company is a bank
holding company, or the OTS, if the Company is a savings and loan holding
company.
Section
3.11. Subsidiary;
Insured Depository Institution.
So
long
as any of the Debentures remain outstanding, at least one operating Subsidiary
of the Company shall be an insured depository institution, as such term is
defined in Section 3(c)(2) of the Federal Deposit Insurance Act, as
amended.
ARTICLE
IV.
SECURITYHOLDERS’
LISTS AND REPORTS
BY
THE COMPANY AND THE TRUSTEE
Section
4.1. Securityholders’
Lists.
The
Company covenants and agrees that it will furnish or cause to be furnished
to
the Trustee:
(a) on
each
regular record date for the Debentures, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Securityholders of
the
Debentures as of such record date; and
(b) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
except
that no such lists need be furnished under this Section 4.1 so long as the
Trustee is in possession thereof by reason of its acting as Debenture
registrar.
Section
4.2. Preservation
and Disclosure of Lists.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the holders of Debentures
(1) contained in the most recent list furnished to it as provided in
Section 4.1 or (2) received by it in the capacity of Debentures
registrar (if so acting) hereunder. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In
case
three or more holders of Debentures (hereinafter referred to as “applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof
that
each such applicant has owned a Debenture for a period of at least 6 months
preceding the date of such application, and such application states that
the
applicants desire to communicate with other holders of Debentures with respect
to their rights under this Indenture or under such Debentures and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within 5 Business Days after
the
receipt of such application, at its election, either:
(1) afford
such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this
Section 4.2, or
(2) inform
such applicants as to the approximate number of holders of Debentures whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified
in
such application.
If
the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
Securityholder whose name and address appear in the information preserved
at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2 a copy of the form of proxy or other communication which
is specified in such request with reasonable promptness after a tender to
the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable
law,
together with a copy of the material to be mailed, a written statement to
the
effect that, in the opinion of the Trustee, such mailing would be contrary
to
the best interests of the holders of all Debentures, as the case may be,
or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, as permitted
or required by applicable law, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained
have
been met and shall enter an order so declaring, the Trustee shall mail copies
of
such material to all such Securityholders with reasonable promptness after
the
entry of such order and the renewal of such tender; otherwise the Trustee
shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each
and
every holder of Debentures, by receiving and holding the same, agrees with
the
Company and the Trustee that neither the Company nor the Trustee nor any
paying
agent shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Debentures in
accordance with the provisions of subsection (b) of this Section 4.2,
regardless of the source from which such information was derived, and that
the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
Section
4.3. Reports
by the Company.
(a) The
Company shall furnish to the holders of the Capital Securities and to
prospective purchasers of the Capital Securities, upon their request, the
information required to be furnished pursuant to Rule 144A(d)(4) under the
Securities Act.
(b) The
Company shall furnish to (i) Wilmington Trust Company, with a copy to FTN
Financial Capital Markets and Keefe, Bruyette & Woods, Inc., and
(ii) any beneficial owner of the Capital Securities reasonably identified
to the Company, a completed quarterly report in the form attached hereto
as
Exhibit C, which report shall be so furnished by the Company not
later than 50 days after the end of each of the first three fiscal quarters
of
each fiscal year of the Company and not later than 100 days after the end
of
each fiscal year of the Company along with a copy of the Company’s most recently
filed (1) FR Y-9C filed with the Federal Reserve if the Company is a bank
holding company, (2) FR Y-9SP filed with the Federal Reserve if the Company
is a small bank holding company or (3) H-(b)11 filed with the OTS if the
Company is a savings and loan holding company.
ARTICLE
V.
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
UPON
AN EVENT OF DEFAULT
Section
5.1. Events
of Default.
“Event
of
Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the
Company defaults in the payment of any interest upon any Debenture, including
any Additional Interest in respect thereof, following the nonpayment of any
such
interest for twenty or more consecutive Distribution Periods; or
(b) the
Company defaults in the payment of all or any part of the principal of (or
premium, if any, on) any Debentures as and when the same shall become due
and
payable either at maturity, upon redemption, by declaration of acceleration
or
otherwise; or
(c) the
Company defaults in the performance of, or breaches, any of its covenants
or
agreements in this Indenture or in the terms of the Debentures established
as
contemplated in this Indenture (other than a covenant or agreement a default
in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at
least 25% in aggregate principal amount of the outstanding Debentures, a
written
notice specifying such default or breach and requiring it to be remedied
and
stating that such notice is a “Notice of Default” hereunder; or
(d) a
court
of competent jurisdiction shall enter a decree or order for relief in respect
of
the Company in an involuntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or appointing
a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree or
order
shall remain unstayed and in effect for a period of 90 consecutive days;
or
(e) the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case
under
any such law, or shall consent to the appointment of or taking possession
by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property,
or
shall make any general assignment for the benefit of creditors, or shall
fail
generally to pay its debts as they become due; or
(f) the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with
(i) the distribution of the Debentures to holders of such Trust Securities
in liquidation of their interests in the Trust, (ii) the redemption of all
of the outstanding Trust Securities or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the
Declaration.
If
an
Acceleration Event of Default occurs and is continuing with respect to the
Debentures, then, and in each and every such case, unless the principal of
the
Debentures shall have already become due and payable, either the Trustee
or the
holders of not less than 25% in aggregate principal amount of the Debentures
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal of
the
Debentures and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due
and payable. If an Event of Default under Section 5.1(b) or (c)
occurs and is continuing with respect to the Debentures, then, and in each
and
every such case, unless the principal of the Debentures shall have already
become due and payable, either the Trustee or the holders of not less than
25%
in aggregate principal amount of the Debentures then outstanding hereunder,
by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may proceed to remedy the default or breach thereunder
by such
appropriate judicial proceedings as the Trustee or such holders shall deem
most
effectual to remedy the defaulted covenant or enforce the provisions of this
Indenture so breached, either by suit in equity or by action at law, for
damages
or otherwise.
The
foregoing provisions, however, are subject to the condition that if, at any
time
after the principal of the Debentures shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys
due
shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all
matured installments of interest upon all the Debentures and the principal
of
and premium, if any, on the Debentures which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and
Additional Interest) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant
to Section 6.6, if any, and (ii) all Events of Default under this
Indenture, other than the non-payment of the principal of or premium, if
any, on
Debentures which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such
case the holders of a majority in aggregate principal amount of the Debentures
then outstanding, by written notice to the Company and to the Trustee, may
waive
all defaults and rescind and annul such declaration and its consequences,
but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In
case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the holders of the Debentures shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers
of
the Company, the Trustee and the holders of the Debentures shall continue
as
though no such proceeding had been taken.
Section
5.2. Payment
of Debentures on Default; Suit Therefor.
The
Company covenants that upon the occurrence of an Event of Default pursuant
to
Section 5.1(a) or (b) then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Debentures the
whole
amount that then shall have become due and payable on all Debentures for
principal and premium, if any, or interest, or both, as the case may be,
with
Additional Interest accrued on the Debentures (to the extent that payment
of
such interest is enforceable under applicable law and, if the Debentures
are
held by the Trust or a trustee of such Trust, without duplication of any
other
amounts paid by the Trust or a trustee in respect thereof); and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee,
its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.6. In case the Company shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee
of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or
any other obligor on such Debentures and collect in the manner provided by
law
out of the property of the Company or any other obligor on such Debentures
wherever situated the moneys adjudged or decreed to be payable.
In
case
there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debentures under Bankruptcy Law,
or
in case a receiver or trustee shall have been appointed for the property
of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debentures,
or to
the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due
and
payable as therein expressed or by declaration of acceleration or otherwise
and
irrespective of whether the Trustee shall have made any demand pursuant to
the
provisions of this Section 5.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise,
|
(i)
|
to
file and prove a claim or claims for the whole amount of principal
and
interest owing and unpaid in respect of the
Debentures,
|
|
(ii)
|
in
case of any judicial proceedings, to file such proofs of claim
and other
papers or documents as may be necessary or advisable in order to
have the
claims of the Trustee (including any claim for reasonable compensation
to
the Trustee and each predecessor Trustee, and their respective
agents,
attorneys and counsel, and for reimbursement of all other amounts
due to
the Trustee under Section 6.6), and of the Securityholders allowed in
such judicial proceedings relative to the Company or any other
obligor on
the Debentures, or to the creditors or property of the Company
or such
other obligor, unless prohibited by applicable law and regulations,
to
vote on behalf of the holders of the Debentures in any election
of a
trustee or a standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or Person performing
similar
functions in comparable
proceedings,
|
|
(iii)
|
to
collect and receive any moneys or other property payable or deliverable
on
any such claims, and
|
|
(iv)
|
to
distribute the same after the deduction of its charges and
expenses.
|
Any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee such amounts as shall
be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.6.
Nothing
herein contained shall be construed to authorize the Trustee to authorize
or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
All
rights of action and of asserting claims under this Indenture, or under any
of
the Debentures, may be enforced by the Trustee without the possession of
any of
the Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Debentures.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall
be
a party), the Trustee shall be held to represent all the holders of the
Debentures, and it shall not be necessary to make any holders of the Debentures
parties to any such proceedings.
Section
5.3. Application
of Moneys Collected by Trustee.
Any
moneys collected by the Trustee pursuant to this Article V shall be applied
in the following order, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Debentures
in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
First: To
the payment of costs and expenses incurred by, and reasonable fees of, the
Trustee, its agents, attorneys and counsel, and of all other amounts due
to the
Trustee under Section 6.6;
Second: To
the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XV;
Third: To
the payment of the amounts then due and unpaid upon Debentures for principal
(and premium, if any), and interest on the Debentures, in respect of which
or
for the benefit of which money has been collected, ratably, without preference
or priority of any kind, according to the amounts due on such Debentures
(including Additional Interest); and
Fourth: The
balance, if any, to the Company.
Section
5.4. Proceedings
by Securityholders.
No
holder
of any Debenture shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall
have
given to the Trustee written notice of an Event of Default with respect to
the
Debentures and unless the holders of not less than 25% in aggregate principal
amount of the Debentures then outstanding shall have given the Trustee a
written
request to institute such action, suit or proceeding and shall have offered
to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action, suit or proceeding.
Notwithstanding
any other provisions in this Indenture, however, the right of any holder
of any
Debenture to receive payment of the principal of, premium, if any, and interest,
on such Debenture when due, or to institute suit for the enforcement of any
such
payment, shall not be impaired or affected without the consent of such holder
and by accepting a Debenture hereunder it is expressly understood, intended
and
covenanted by the taker and holder of every Debenture with every other such
taker and holder and the Trustee, that no one or more holders of Debentures
shall have any right in any manner whatsoever by virtue or by availing itself
of
any provision of this Indenture to affect, disturb or prejudice the rights
of
the holders of any other Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under
this
Indenture, except in the manner herein provided and for the equal, ratable
and
common benefit of all holders of Debentures. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and
the Trustee shall be entitled to such relief as can be given either at law
or in
equity.
Section
5.5. Proceedings
by Trustee.
In
case
of an Event of Default hereunder the Trustee may in its discretion proceed
to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to
protect and enforce any of such rights, either by suit in equity or by action
at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid
of the exercise of any power granted in this Indenture, or to enforce any
other
legal or equitable right vested in the Trustee by this Indenture or by
law.
Section
5.6. Remedies
Cumulative and Continuing; Delay or Omission Not a
Waiver.
Except
as
otherwise provided in Section 2.6, all powers and remedies given by this
Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and
remedies available to the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Debentures, and no delay or omission of the Trustee or
of
any holder of any of the Debentures to exercise any right, remedy or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall
impair any such right, remedy or power, or shall be construed to be a waiver
of
any such default or an acquiescence therein; and, subject to the provisions
of
Section 5.4, every power and remedy given by this Article V or by law
to the Trustee or to the Securityholders may be exercised from time to time,
and
as often as shall be deemed expedient, by the Trustee (in accordance with
its
duties under Section 6.1) or by the Securityholders.
Section
5.7. Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders.
The
holders of a majority in aggregate principal amount of the Debentures affected
(voting as one class) at the time outstanding shall have the right to direct
the
time, method, and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such Debentures; provided, however, that (subject to
the provisions of Section 6.1) the Trustee shall have the right to decline
to follow any such direction if the Trustee shall determine that the action
so
directed would be unjustly prejudicial to the holders not taking part in
such
direction or if the Trustee being advised by counsel determines that the
action
or proceeding so directed may not lawfully be taken or if a Responsible Officer
of the Trustee shall determine that the action or proceedings so directed
would
involve the Trustee in personal liability.
The
holders of a majority in aggregate principal amount of the Debentures at
the
time outstanding may on behalf of the holders of all of the Debentures waive
(or
modify any previously granted waiver of) any past default or Event of Default,
and its consequences, except a default (a) in the payment of principal of,
premium, if any, or interest on any of the Debentures, (b) in respect of
covenants or provisions hereof which cannot be modified or amended without
the
consent of the holder of each Debenture affected, or (c) in respect of the
covenants contained in Section 3.9; provided, however, that
if the Debentures are held by the Trust or a trustee of such trust, such
waiver
or modification to such waiver shall not be effective until the holders of
a
majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver, provided,
further, that if the consent of the holder of each outstanding Debenture
is required, such waiver shall not be effective until each holder of the
Trust
Securities of the Trust shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for
all
purposes of this Indenture and the Company, the Trustee and the holders of
the
Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default
or Event of Default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted
by
this Section, said default or Event of Default shall for all purposes of
the
Debentures and this Indenture be deemed to have been cured and to be not
continuing.
Section
5.8. Notice
of Defaults.
The
Trustee shall, within 90 days after the actual knowledge by a Responsible
Officer of the Trustee of the occurrence of a default with respect to the
Debentures, mail to all Securityholders, as the names and addresses of such
holders appear upon the Debenture Register, notice of all defaults with respect
to the Debentures known to the Trustee, unless such defaults shall have been
cured before the giving of such notice (the term “defaults” for the purpose of
this Section 5.8 being hereby defined to be the events specified in
clauses (a), (b), (c), (d), (e) and (f) of Section 5.1, not including
periods of grace, if any, provided for therein); provided,
however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Debentures, the
Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders.
Section
5.9. Undertaking
to Pay Costs.
All
parties to this Indenture agree, and each holder of any Debenture by his
acceptance thereof shall be deemed to have agreed, that any court may in
its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted
by
any Securityholder, or group of Securityholders, holding in the aggregate
more
than 10% in principal amount of the Debentures outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debenture against the
Company on or after the same shall have become due and payable.
ARTICLE
VI.
CONCERNING
THE TRUSTEE
Section
6.1. Duties
and Responsibilities of Trustee.
With
respect to the holders of Debentures issued hereunder, the Trustee, prior
to the
occurrence of an Event of Default with respect to the Debentures and after
the
curing or waiving of all Events of Default which may have occurred, with
respect
to the Debentures, undertakes to perform such duties and only such duties
as are
specifically set forth in this Indenture, and no implied covenants shall
be read
into this Indenture against the Trustee. In case an Event of Default
with respect to the Debentures has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested
in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs.
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct, except that:
(a) prior
to
the occurrence of an Event of Default with respect to Debentures and after
the
curing or waiving of all Events of Default which may have occurred
(1) the
duties and obligations of the Trustee with respect to Debentures shall be
determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations
with respect to the Debentures as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee, and
(2) in
the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the case of
any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to
examine the same to determine whether or not they conform to the requirements
of
this Indenture;
(b) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer or Officers of the Trustee, unless it shall be proved
that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith, in accordance with the direction of the
Securityholders pursuant to Section 5.7, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
None
of
the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in
the
performance of any of its duties or in the exercise of any of its rights
or
powers, if there is ground for believing that the repayment of such funds
or
liability is not assured to it under the terms of this Indenture or indemnity
satisfactory to the Trustee against such risk is not reasonably assured to
it.
Section
6.2. Reliance
on Documents, Opinions, etc.
Except
as
otherwise provided in Section 6.1:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or
other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any
request, direction, order or demand of the Company mentioned herein shall
be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may
be evidenced to the Trustee by a copy thereof certified by the Secretary
or an
Assistant Secretary of the Company;
(c) the
Trustee may consult with counsel of its selection and any advice or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any
of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good
faith
and believed by it to be authorized or within the discretion or rights or
powers
conferred upon it by this Indenture; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to the Debentures (that has not been cured or waived)
to
exercise with respect to Debentures such of the rights and powers vested
in it
by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the
conduct of his own affairs;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the holders of
not
less than a majority in aggregate principal amount of the outstanding Debentures
affected thereby; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to
be incurred by it in the making of such investigation is, in the opinion
of the
Trustee, not reasonably assured to the Trustee by the security afforded to
it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents (including any Authenticating
Agent) or attorneys, and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it with
due
care; and
(h) with
the
exceptions of defaults under Sections 5.1(a) or (b), the Trustee shall not
be
charged with knowledge of any Default or Event of Default with respect to
the
Debentures unless a written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other obligor on the
Debentures or by any holder of the Debentures.
Section
6.3. No
Responsibility for Recitals, etc.
The
recitals contained herein and in the Debentures (except in the certificate
of
authentication of the Trustee or the Authenticating Agent) shall be taken
as the
statements of the Company, and the Trustee and the Authenticating Agent assume
no responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee and
the Authenticating Agent shall not be accountable for the use or application
by
the Company of any Debentures or the proceeds of any Debentures authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with
the
provisions of this Indenture.
Section
6.4. Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debentures.
The
Trustee or any Authenticating Agent or any paying agent or any transfer agent
or
any Debenture registrar, in its individual or any other capacity, may become
the
owner or pledgee of Debentures with the same rights it would have if it were
not
Trustee, Authenticating Agent, paying agent, transfer agent or Debenture
registrar.
Section
6.5. Moneys
to be Held in Trust.
Subject
to the provisions of Section 12.4, all moneys received by the Trustee or
any paying agent shall, until used or applied as herein provided, be held
in
trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time
to
time upon the written order of the Company, signed by the Chairman of the
Board
of Directors, the Chief Executive Officer, the President, a Managing Director,
a
Vice President, the Treasurer or an Assistant Treasurer of the
Company.
Section
6.6. Compensation
and Expenses of Trustee.
The
Company covenants and agrees to pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made
by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or willful
misconduct. For purposes of clarification, this Section 6.6 does
not contemplate the payment by the Company of acceptance or annual
administration fees owing to the Trustee pursuant to the services to be provided
by the Trustee under this Indenture or the fees and expenses of the Trustee’s
counsel in connection with the closing of the transactions contemplated by
this
Indenture. The Company also covenants to indemnify each of the
Trustee or any predecessor Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or willful misconduct
on the
part of the Trustee and arising out of or in connection with the acceptance
or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability. The obligations of the Company
under this Section 6.6 to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Debentures upon
all
property and funds held or collected by the Trustee as such, except funds
held
in trust for the benefit of the holders of particular Debentures.
Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an
Event
of Default specified in Section 5.1(d), (e) or (f), the expenses (including
the reasonable charges and expenses of its counsel) and the compensation
for the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar
law.
The
provisions of this Section shall survive the resignation or removal of the
Trustee and the defeasance or other termination of this Indenture.
Notwithstanding
anything in this Indenture or any Debenture to the contrary, the Trustee
shall
have no obligation whatsoever to advance funds to pay any principal of or
interest on or other amounts with respect to the Debentures or otherwise
advance
funds to or on behalf of the Company.
Section
6.7. Officers’
Certificate as Evidence.
Except
as
otherwise provided in Sections 6.1 and 6.2, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved
and
established by an Officers’ Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or willful misconduct on the part
of
the Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith
thereof.
Section
6.8. Eligibility
of Trustee.
The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person authorized under such laws to exercise corporate trust powers, having
(or
whose obligations under this Indenture are guaranteed by an affiliate having)
a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000.00) and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 6.8 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth
in its most recent records of condition so published.
The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as
Trustee.
In
case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.8, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.9.
If
the
Trustee has or shall acquire any “conflicting interest” within the meaning of §
310(b) of the Trust Indenture Act of 1939, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner described by this
Indenture.
Section
6.9. Resignation
or Removal of Trustee
(a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign
by giving written notice of such resignation to the Company and by mailing
notice thereof, at the Company’s expense, to the holders of the Debentures at
their addresses as they shall appear on the Debenture Register. Upon
receiving such notice of resignation, the Company shall promptly appoint
a
successor trustee or trustees by written instrument, in duplicate, executed
by
order of its Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debenture or Debentures for at least
six
months may, subject to the provisions of Section 5.9, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(b) In
case
at any time any of the following shall occur --
(1) the
Trustee shall fail to comply with the provisions of Section 6.8 after
written request therefor by the Company or by any Securityholder who has
been a
bona fide holder of a Debenture or Debentures for at least 6 months,
or
(2) the
Trustee shall cease to be eligible in accordance with the provisions of
Section 6.8 and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
(3) the
Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then,
in
any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board
of
Directors, one copy of which instrument shall be delivered to the Trustee
so
removed and one copy to the successor Trustee, or, subject to the provisions
of
Section 5.9, any Securityholder who has been a bona fide holder of a
Debenture or Debentures for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for
the removal of the Trustee and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint successor
Trustee.
(c) Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debentures at the time outstanding may
at
any time remove the Trustee and nominate a successor Trustee, which shall
be
deemed appointed as successor Trustee unless within 10 Business Days after
such
nomination the Company objects thereto, in which case, or in the case of
a
failure by such holders to nominate a successor Trustee, the Trustee so removed
or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.9 provided, may petition any court of
competent jurisdiction for an appointment of a successor.
(d) Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section shall become effective
upon
acceptance of appointment by the successor Trustee as provided in
Section 6.10.
Section
6.10. Acceptance
by Successor Trustee.
Any
successor Trustee appointed as provided in Section 6.9 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with
all the rights, powers, duties and obligations with respect to the Debentures
of
its predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts
then due it pursuant to the provisions of Section 6.6, execute and deliver
an instrument transferring to such successor Trustee all the rights and powers
of the Trustee so ceasing to act and shall duly assign, transfer and deliver
to
such successor Trustee all property and money held by such retiring Trustee
thereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If
a
successor Trustee is appointed, the Company, the retiring Trustee and the
successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debentures as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall
add
to or change any of the provisions of this Indenture as shall be necessary
to
provide for or facilitate the administration of the Trust hereunder by more
than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that
each such Trustee shall be Trustee of a trust or trusts hereunder separate
and
apart from any trust or trusts hereunder administered by any other such
Trustee.
No
successor Trustee shall accept appointment as provided in this Section unless
at
the time of such acceptance such successor Trustee shall be eligible under
the
provisions of Section 6.8.
In
no
event shall a retiring Trustee be liable for the acts or omissions of any
successor Trustee hereunder.
Upon
acceptance of appointment by a successor Trustee as provided in this
Section 6.10, the Company shall mail notice of the succession of such
Trustee hereunder to the holders of Debentures at their addresses as they
shall
appear on the Debenture Register. If the Company fails to mail such
notice within 10 Business Days after the acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed
at
the expense of the Company.
Section
6.11. Succession
by Merger, etc.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of
the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto; provided such corporation shall be otherwise eligible and
qualified under this Article.
In
case
at the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Debentures shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name
of the
successor Trustee; and in all such cases such certificates shall have the
full
force which it is anywhere in the Debentures or in this Indenture provided
that
the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Debentures in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or
consolidation.
Section
6.12. Authenticating
Agents.
There
may
be one or more Authenticating Agents appointed by the Trustee upon the request
of the Company with power to act on its behalf and subject to its direction
in
the authentication and delivery of Debentures issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as
though
any such Authenticating Agent had been expressly authorized to authenticate
and
deliver Debentures; provided, however, that the Trustee shall have
no liability to the Company for any acts or omissions of the Authenticating
Agent with respect to the authentication and delivery of
Debentures. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
or
of any state or territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital
and
surplus of at least $50,000,000.00 and being subject to supervision or
examination by federal, state, territorial or District of Columbia
authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority, then
for
the purposes of this Section 6.12 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with
the effect herein specified in this Section.
Any
corporation into which any Authenticating Agent may be merged or converted
or
with which it may be consolidated, or any corporation resulting from any
merger,
consolidation or conversion to which any Authenticating Agent shall be a
party,
or any corporation succeeding to all or substantially all of the corporate
trust
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing of any
paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent with respect to the
Debentures by giving written notice of termination to such Authenticating
Agent
and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent
shall
cease to be eligible under this Section 6.12, the Trustee may, and upon the
request of the Company shall, promptly appoint a successor Authenticating
Agent
eligible under this Section 6.12, shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all
holders of Debentures as the names and addresses of such holders appear on
the
Debenture Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities with respect to the Debentures of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The
Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE
VII.
CONCERNING
THE SECURITYHOLDERS
Section
7.1. Action
by Securityholders.
Whenever
in this Indenture it is provided that the holders of a specified percentage
in
aggregate principal amount of the Debentures may take any action (including
the
making of any demand or request, the giving of any notice, consent or waiver
or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar
tenor executed by such Securityholders in person or by agent or proxy appointed
in writing, or (b) by the record of such holders of Debentures voting in
favor thereof at any meeting of such Securityholders duly called and held
in
accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such
a
meeting of such Securityholders or (d) by any other method the Trustee
deems satisfactory.
If
the
Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such Debentures for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action or revocation of the same may be
given
before or after the record date, but only the Securityholders of record at
the
close of business on the record date shall be deemed to be Securityholders
for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, and for that purpose the outstanding
Debentures shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
6
months after the record date.
Section
7.2. Proof
of Execution by Securityholders.
Subject
to the provisions of Section 6.1, 6.2 and 8.5, proof of the execution of
any instrument by a Securityholder or his agent or proxy shall be sufficient
if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Debentures shall be proved by the Debenture
Register or by a certificate of the Debenture registrar. The Trustee
may require such additional proof of any matter referred to in this Section
as
it shall deem necessary.
The
record of any Securityholders’ meeting shall be proved in the manner provided in
Section 8.6.
Section
7.3. Who
Are Deemed Absolute Owners.
Prior
to
due presentment for registration of transfer of any Debenture, the Company,
the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and
any
Debenture registrar may deem the Person in whose name such Debenture shall
be
registered upon the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be overdue)
for the
purpose of receiving payment of or on account of the principal of, premium,
if
any, and interest on such Debenture and for all other purposes; and neither
the
Company nor the Trustee nor any Authenticating Agent nor any paying agent
nor
any transfer agent nor any Debenture registrar shall be affected by any notice
to the contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the sum or
sums so
paid, effectual to satisfy and discharge the liability for moneys payable
upon
any such Debenture.
Section
7.4. Debentures
Owned by Company Deemed Not Outstanding.
In
determining whether the holders of the requisite aggregate principal amount
of
Debentures have concurred in any direction, consent or waiver under this
Indenture, Debentures which are owned by the Company or any other obligor
on the
Debentures or by any Person directly or indirectly controlling or controlled
by
or under direct or indirect common control with the Company or any other
obligor
on the Debentures shall be disregarded and deemed not to be outstanding for
the
purpose of any such determination; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying
on any
such direction, consent or waiver, only Debentures which a Responsible Officer
of the Trustee actually knows are so owned shall be so
disregarded. Debentures so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 7.4
if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s
right to vote such Debentures and that the pledgee is not the Company or
any
such other obligor or Person directly or indirectly controlling or controlled
by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to
the
Trustee.
Section
7.5. Revocation
of Consents; Future Holders Bound.
At
any
time prior to (but not after) the evidencing to the Trustee, as provided
in
Section 7.1, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Debentures specified in this Indenture
in
connection with such action, any holder (in cases where no record date has
been
set pursuant to Section 7.1) or any holder as of an applicable record date
(in cases where a record date has been set pursuant to Section 7.1) of a
Debenture (or any Debenture issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence
to be
included in the Debentures the holders of which have consented to such action
may, by filing written notice with the Trustee at the Principal Office of
the
Trustee and upon proof of holding as provided in Section 7.2, revoke such
action so far as concerns such Debenture (or so far as concerns the principal
amount represented by any exchanged or substituted Debenture). Except
as aforesaid any such action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Debenture, and of any Debenture issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether
or not
any notation in regard thereto is made upon such Debenture or any Debenture
issued in exchange or substitution therefor.
ARTICLE
VIII.
SECURITYHOLDERS’
MEETINGS
Section
8.1. Purposes
of Meetings.
A
meeting
of Securityholders may be called at any time and from time to time pursuant
to
the provisions of this Article VIII for any of the following
purposes:
(a) to
give
any notice to the Company or to the Trustee, or to give any directions to
the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of
Article V;
(b) to
remove
the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;
(c) to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.2; or
(d) to
take
any other action authorized to be taken by or on behalf of the holders of
any
specified aggregate principal amount of such Debentures under any other
provision of this Indenture or under applicable law.
Section
8.2. Call
of Meetings by Trustee.
The
Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 8.1, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and
in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debentures affected at their addresses as they shall appear
on the
Debentures Register and, if the Company is not a holder of Debentures, to
the
Company. Such notice shall be mailed not less than 20 nor more than
180 days prior to the date fixed for the meeting.
Section
8.3. Call
of Meetings by Company or Securityholders.
In
case
at any time the Company pursuant to a Board Resolution, or the holders of
at
least 10% in aggregate principal amount of the Debentures, as the case may
be,
then outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time
and the
place for such meeting and may call such meeting to take any action authorized
in Section 8.1, by mailing notice thereof as provided in
Section 8.2.
Section
8.4. Qualifications
for Voting.
To
be
entitled to vote at any meeting of Securityholders a Person shall (a) be a
holder of one or more Debentures with respect to which the meeting is being
held
or (b) a Person appointed by an instrument in writing as proxy by a holder
of one or more such Debentures. The only Persons who shall be
entitled to be present or to speak at any meeting of Securityholders shall
be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of
the
Company and its counsel.
Section
8.5. Regulations.
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders,
in
regard to proof of the holding of Debentures and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the
right to vote, and such other matters concerning the conduct of the meeting
as
it shall think fit.
The
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 8.3, in which case the Company or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject
to the provisions of Section 7.4, at any meeting each holder of Debentures
with respect to which such meeting is being held or proxy therefor shall
be
entitled to one vote for each $1,000.00 principal amount of Debentures held
or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Debenture challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Debentures held by him or instruments in writing
as
aforesaid duly designating him as the Person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant
to the provisions of Section 8.2 or 8.3 may be adjourned from time to time
by a majority of those present, whether or not constituting a quorum, and
the
meeting may be held as so adjourned without further notice.
Section
8.6. Voting.
The
vote
upon any resolution submitted to any meeting of holders of Debentures with
respect to which such meeting is being held shall be by written ballots on
which
shall be subscribed the signatures of such holders or of their representatives
by proxy and the serial number or numbers of the Debentures held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes
on any vote by ballot taken thereat and affidavits by one or more Persons
having
knowledge of the facts setting forth a copy of the notice of the meeting
and
showing that said notice was mailed as provided in
Section 8.2. The record shall show the serial numbers of the
Debentures voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman
and
secretary of the meeting and one of the duplicates shall be delivered to
the
Company and the other to the Trustee to be preserved by the Trustee, the
latter
to have attached thereto the ballots voted at the meeting.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section
8.7. Quorum;
Actions.
The
Persons entitled to vote a majority in principal amount of the Debentures
then
outstanding shall constitute a quorum for a meeting of Securityholders;
provided, however, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders
of
not less than a specified percentage in principal amount of the Debentures
then
outstanding, the Persons holding or representing such specified percentage
in
principal amount of the Debentures then outstanding will constitute a
quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of
Securityholders, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less
than
10 days as determined by the permanent chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 8.2, except
that such notice need be given only once not less than 5 days prior to the
date
on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage,
as
provided above, of the principal amount of the Debentures then outstanding
which
shall constitute a quorum.
Except
as
limited by the provisos in the first paragraph of Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which
a quorum is present as aforesaid may be adopted by the affirmative vote of
the
holders of a majority in principal amount of the Debentures then outstanding;
provided, however, that, except as limited by the provisos in the
first paragraph of Section 9.2, any resolution with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action
which
this Indenture expressly provides may be given by the holders of not less
than a
specified percentage in principal amount of the Debentures then outstanding
may
be adopted at a meeting or an adjourned meeting duly reconvened and at which
a
quorum is present as aforesaid only by the affirmative vote of the holders
of a
not less than such specified percentage in principal amount of the Debentures
then outstanding.
Any
resolution passed or decision taken at any meeting of holders of Debentures
duly
held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the
meeting.
ARTICLE
IX.
SUPPLEMENTAL
INDENTURES
Section
9.1. Supplemental
Indentures without Consent of
Securityholders.
The
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to
evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants,
agreements and obligations of the Company, pursuant to Article XI
hereof;
(b) to
add to
the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debentures as the Board of Directors
shall
consider to be for the protection of the holders of such Debentures, and
to make
the occurrence, or the occurrence and continuance, of a default in any of
such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant restriction or condition
such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case
of
other defaults) or may provide for an immediate enforcement upon such default
or
may limit the remedies available to the Trustee upon such default;
(c) to
cure
any ambiguity or to correct or supplement any provision contained herein
or in
any supplemental indenture which may be defective or inconsistent with any
other
provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture;
provided that any such action shall not materially adversely affect the
interests of the holders of the Debentures;
(d) to
add
to, delete from, or revise the terms of Debentures, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debentures, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital Securities
as required by Section 2.5 (for purposes of assuring that no registration
of Debentures is required under the Securities Act); provided,
however, that any such action shall not adversely affect the interests
of
the holders of the Debentures then outstanding (it being understood, for
purposes of this proviso, that transfer restrictions on Debentures substantially
similar to those that were applicable to Capital Securities shall not be
deemed
to materially adversely affect the holders of the Debentures);
(e) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debentures and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee;
(f) to
make
any change (other than as elsewhere provided in this paragraph) that does
not
adversely affect the rights of any Securityholder in any material respect;
or
(g) to
provide for the issuance of and establish the form and terms and conditions
of
the Debentures, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or the Debentures, or to
add
to the rights of the holders of Debentures.
The
Trustee is hereby authorized to join with the Company in the execution of
any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall
not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section 9.1 may
be executed by the Company and the Trustee without the consent of the holders
of
any of the Debentures at the time outstanding, notwithstanding any of the
provisions of Section 9.2.
Section
9.2. Supplemental
Indentures with Consent of
Securityholders.
With
the
consent (evidenced as provided in Section 7.1) of the holders of not less
than a majority in aggregate principal amount of the Debentures at the time
outstanding affected by such supplemental indenture (voting as a class),
the
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures; provided, however, that no such supplemental indenture
shall without the consent of the holders of each Debenture then outstanding
and
affected thereby (i) change the fixed maturity of any Debenture, or reduce
the principal amount thereof or any premium thereon, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount payable
on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the
Debentures, or impair or affect the right of any Securityholder to institute
suit for payment thereof or impair the right of repayment, if any, at the
option
of the holder, or (ii) reduce the aforesaid percentage of Debentures the
holders of which are required to consent to any such supplemental indenture;
providedfurther, however, that if the Debentures are held
by a trust or a trustee of such trust, such supplemental indenture shall
not be
effective until the holders of a majority in Liquidation Amount of Trust
Securities shall have consented to such supplemental indenture;
providedfurther, however, that if the consent of the
Securityholder of each outstanding Debenture is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities
shall
have consented to such supplemental indenture.
Upon
the
request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by
mail,
first class postage prepaid, a notice, prepared by the Company, setting forth
in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Debenture
Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of
any such supplemental indenture.
It
shall
not be necessary for the consent of the Securityholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section
9.3. Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this
Indenture for any and all purposes.
Section
9.4. Notation
on Debentures.
Debentures
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may bear a notation as to any
matter provided for in such supplemental indenture. If the Company or
the Trustee shall so determine, new Debentures so modified as to conform,
in the
opinion of the Board of Directors of the Company, to any modification of
this
Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debentures then
outstanding.
Section
9.5. Evidence
of Compliance of Supplemental Indenture to be Furnished to
Trustee.
The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall, in
addition to the documents required by Section 14.6, receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article IX is authorized or permitted by, and conforms to, the
terms of this Article IX and that it is proper for the Trustee under the
provisions of this Article IX to join in the execution
thereof.
ARTICLE
X.
REDEMPTION
OF SECURITIES
Section
10.1. Optional
Redemption.
The
Company shall have the right (subject to the receipt by the Company of prior
approval (i) if the Company is a bank holding company, from the Federal
Reserve, if then required under applicable capital guidelines or policies
of the
Federal Reserve or (ii) if the Company is a savings and loan holding
company, from the OTS, if then required under applicable capital guidelines
or
policies of the OTS) to redeem the Debentures, in whole or in part, but in
all
cases in a principal amount with integral multiples of $1,000.00, on any
Interest Payment Date on or after the Interest Payment Date in December 2012
(the “Redemption Date”), at the Redemption Price.
Section
10.2. Special
Event Redemption.
If
a
Special Event shall occur and be continuing, the Company shall have the right
(subject to the receipt by the Company of prior approval (i) if the Company
is a bank holding company, from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve or (ii) if
the Company is a savings and loan holding company, from the OTS, if then
required under applicable capital guidelines or policies of the OTS) to redeem
the Debentures in whole, but not in part, at any Interest Payment Date, within
120 days following the occurrence of such Special Event (the “Special
Redemption Date”) at the Special Redemption Price. If the Special
Event redemption occurs prior to the Interest Payment Date in December 2012,
the
Company shall appoint a Quotation Agent, which shall be a designee of the
Institutional Trustee, for the purpose of performing the services contemplated
in, or by reference in, the definition of Special Redemption
Price. Any error in the calculation of the Special Redemption Price
by the Quotation Agent or the Trustee may be corrected at any time by notice
delivered to the Company and the holders of the Debentures. Subject
to the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions relating to
the
payment and calculation of the Special Redemption Price on the Debentures
by the
Trustee or the Quotation Agent, as the case may be, shall (in the absence
of
willful default, bad faith or manifest error) be final, conclusive and binding
on the holders of the Debentures and the Company, and no liability shall
attach
(except as provided above) to the Trustee or the Quotation Agent in connection
with the exercise or non-exercise by any of them of their respective powers,
duties and discretion.
Section
10.3. Notice
of Redemption; Selection of Debentures.
In
case
the Company shall desire to exercise the right to redeem all, or, as the
case
may be, any part of the Debentures, it shall cause to be mailed a notice
of such
redemption at least 30 and not more than 60 days prior to the Redemption
Date or the Special Redemption Date to the holders of Debentures so to be
redeemed as a whole or in part at their last addresses as the same appear
on the
Debenture Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Debenture designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.
Each
such
notice of redemption shall specify the CUSIP number, if any, of the Debentures
to be redeemed, the Redemption Date or the Special Redemption Date, as
applicable, the Redemption Price or the Special Redemption Price, as applicable,
at which Debentures are to be redeemed, the place or places of payment, that
payment will be made upon presentation and surrender of such Debentures,
that
interest accrued to the date fixed for redemption will be paid as specified
in
said notice, and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the
Debentures are to be redeemed the notice of redemption shall specify the
numbers
of the Debentures to be redeemed. In case the Debentures are to be
redeemed in part only, the notice of redemption shall state the portion of
the
principal amount thereof to be redeemed and shall state that on and after
the
date fixed for redemption, upon surrender of such Debenture, a new Debenture
or
Debentures in principal amount equal to the unredeemed portion thereof will
be
issued.
Prior
to
10:00 a.m. New York City time on the Redemption Date or Special Redemption
Date,
as applicable, the Company will deposit with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the Redemption Date
or
the Special Redemption Date, as applicable, all the Debentures so called
for
redemption at the appropriate Redemption Price or Special Redemption
Price.
If
all,
or less than all, the Debentures are to be redeemed, the Company will give
the
Trustee notice not less than 45 nor more than 60 days, respectively, prior
to the Redemption Date or Special Redemption Date, as applicable, as to the
aggregate principal amount of Debentures to be redeemed and the Trustee shall
select, in such manner as in its sole discretion it shall deem appropriate
and
fair, the Debentures or portions thereof (in integral multiples of $1,000.00)
to
be redeemed.
Section
10.4. Payment
of Debentures Called for Redemption.
If
notice
of redemption has been given as provided in Section 10.3, the Debentures or
portions of Debentures with respect to which such notice has been given shall
become due and payable on the Redemption Date or Special Redemption Date,
as
applicable, and at the place or places stated in such notice at the applicable
Redemption Price or Special Redemption Price and on and after said date (unless
the Company shall default in the payment of such Debentures at the Redemption
Price or Special Redemption Price, as applicable) interest on the Debentures
or
portions of Debentures so called for redemption shall cease to
accrue. On presentation and surrender of such Debentures at a place
of payment specified in said notice, such Debentures or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price or Special Redemption Price.
Upon
presentation of any Debenture redeemed in part only, the Company shall execute
and the Trustee shall authenticate and make available for delivery to the
holder
thereof, at the expense of the Company, a new Debenture or Debentures of
authorized denominations, in principal amount equal to the unredeemed portion
of
the Debenture so presented.
ARTICLE
XI.
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
Section
11.1. Company
May Consolidate, etc., on Certain Terms.
Nothing
contained in this Indenture or in the Debentures shall prevent any consolidation
or merger of the Company with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or
shall
prevent any sale, conveyance, transfer or other disposition of the property
of
the Company or its successor or successors as an entirety, or substantially
as
an entirety, to any other Person (whether or not affiliated with the Company,
or
its successor or successors) authorized to acquire and operate the same;
provided, however, that the Company hereby covenants and agrees
that, upon any such consolidation, merger (where the Company is not the
surviving corporation), sale, conveyance, transfer or other disposition,
the due
and punctual payment of the principal of (and premium, if any) and interest
on
all of the Debentures in accordance with their terms, according to their
tenor,
and the due and punctual performance and observance of all the covenants
and
conditions of this Indenture to be kept or performed by the Company, shall
be
expressly assumed by supplemental indenture satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
Section
11.2. Successor
Entity to be Substituted.
In
case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor entity, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form
to the
Trustee, of the due and punctual payment of the principal of and premium,
if
any, and interest on all of the Debentures and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to
be
performed or observed by the Company, such successor entity shall succeed
to and
be substituted for the Company, with the same effect as if it had been named
herein as the Company, and thereupon the predecessor entity shall be relieved
of
any further liability or obligation hereunder or upon the
Debentures. Such successor entity thereupon may cause to be signed,
and may issue in its own name, any or all of the Debentures issuable hereunder
which theretofore shall not have been signed by the Company and delivered
to the
Trustee or the Authenticating Agent; and, upon the order of such successor
entity instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debentures which previously shall
have
been signed and delivered by the officers of the Company, to the Trustee
or the
Authenticating Agent for authentication, and any Debentures which such successor
entity thereafter shall cause to be signed and delivered to the Trustee or
the
Authenticating Agent for that purpose. All the Debentures so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Debentures theretofore or thereafter issued in accordance with the
terms
of this Indenture as though all of such Debentures had been issued at the
date
of the execution hereof.
Section
11.3. Opinion
of Counsel to be Given to Trustee.
The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall receive,
in addition to the Opinion of Counsel required by Section 9.5, an Opinion
of Counsel as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or other disposition, and any assumption, permitted
or
required by the terms of this Article XI complies with the provisions of
this Article XI.
ARTICLE
XII.
SATISFACTION
AND DISCHARGE OF INDENTURE
Section
12.1. Discharge
of Indenture.
When
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(a)
|
the
Company shall deliver to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall
have been
destroyed, lost or stolen and which shall have been replaced or
paid as
provided in Section 2.6) and not theretofore canceled,
or
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|
(b)
|
all
the Debentures not theretofore canceled or delivered to the Trustee
for
cancellation shall have become due and payable, or are by their
terms to
become due and payable within 1 year or are to be called for redemption
within 1 year under arrangements satisfactory to the Trustee for
the
giving of notice of redemption, and the Company shall deposit with
the
Trustee, in trust, funds, which shall be immediately due and payable,
sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost
or stolen
and which shall have been replaced or paid as provided in
Section 2.6) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest
due or
to become due to such date of maturity or redemption date, as the
case may
be, but excluding, however, the amount of any moneys for the payment
of
principal of, and premium, if any, or interest on the Debentures
(1) theretofore repaid to the Company in accordance with the
provisions of Section 12.4, or (2) paid to any state or to the
District of Columbia pursuant to its unclaimed property or similar
laws,
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and
if in
the case of either clause (a) or clause (b) the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then
this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4 hereof shall
survive until such Debentures shall mature and be paid. Thereafter,
Sections 6.6 and 12.4 shall survive, and the Trustee, on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, and
at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Debentures.
Section
12.2. Deposited
Moneys to be Held in Trust by Trustee.
Subject
to the provisions of Section 12.4, all moneys deposited with the Trustee
pursuant to Section 12.1 shall be held in trust in a non-interest bearing
account and applied by it to the payment, either directly or through any
paying
agent (including the Company if acting as its own paying agent), to the holders
of the particular Debentures for the payment of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and premium, if any, and interest.
Section
12.3. Paying
Agent to Repay Moneys Held.
Upon
the
satisfaction and discharge of this Indenture all moneys then held by any
paying
agent of the Debentures (other than the Trustee) shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying
agent
shall be released from all further liability with respect to such
moneys.
Section
12.4. Return
of Unclaimed Moneys.
Any
moneys deposited with or paid to the Trustee or any paying agent for payment
of
the principal of, and premium, if any, or interest on Debentures and not
applied
but remaining unclaimed by the holders of Debentures for 2 years after the
date
upon which the principal of, and premium, if any, or interest on such
Debentures, as the case may be, shall have become due and payable, shall,
subject to applicable escheatment laws, be repaid to the Company by the Trustee
or such paying agent on written demand; and the holder of any of the Debentures
shall thereafter look only to the Company for any payment which such holder
may
be entitled to collect, and all liability of the Trustee or such paying agent
with respect to such moneys shall thereupon cease.
ARTICLE
XIII.
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS,
OFFICERS
AND DIRECTORS
Section
13.1. Indenture
and Debentures Solely Corporate
Obligations.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, officer or
director, as such, past, present or future, of the Company or of any successor
Person of the Company, either directly or through the Company or any successor
Person of the Company, whether by virtue of any constitution, statute or
rule of
law, or by the enforcement of any assessment or penalty or otherwise, it
being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of
this
Indenture and the issue of the Debentures.
ARTICLE
XIV.
MISCELLANEOUS
PROVISIONS
Section
14.1. Successors.
All
the
covenants, stipulations, promises and agreements of the Company in this
Indenture shall bind its successors and assigns whether so expressed or
not.
Section
14.2. Official
Acts by Successor Entity.
Any
act
or proceeding by any provision of this Indenture authorized or required to
be
done or performed by any board, committee or officer of the Company shall
and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall at
the
time be the lawful successor of the Company.
Section
14.3. Surrender
of Company Powers.
The
Company by instrument in writing executed by authority of at least 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company and thereupon such power
so
surrendered shall terminate both as to the Company, and as to any permitted
successor.
Section
14.4. Addresses
for Notices, etc.
Any
notice, consent, direction, request, authorization, waiver or demand which
by
any provision of this Indenture is required or permitted to be given, made,
furnished or served by the Trustee or by the Securityholders on or to the
Company may be given or served in writing by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company, with the Trustee for the purpose)
to
the Company, 4811 U.S. Route #5, Derby, Vermont 05829,
Attention: Stephen P. Marsh. Any notice, consent,
direction, request, authorization, waiver or demand by any Securityholder
or the
Company to or upon the Trustee shall be deemed to have been sufficiently
given
or made, for all purposes, if given or made in writing at the office of the
Trustee, addressed to the Trustee, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-1600,
Attention: Corporate Trust Administration. Any notice,
consent, direction, request, authorization, waiver or demand on or to any
Securityholder shall be deemed to have been sufficiently given or made, for
all
purposes, if given or made in writing at the address set forth in the Debenture
Register.
Section
14.5. Governing
Law.
This
Indenture and each Debenture shall be deemed to be a contract made under
the law
of the State of New York, and for all purposes shall be governed by and
construed in accordance with the law of said State, without regard to conflict
of laws principles thereof.
Section
14.6. Evidence
of Compliance with Conditions Precedent.
Upon
any
application or demand by the Company to the Trustee to take any action under
any
of the provisions of this Indenture, the Company shall furnish to the Trustee
an
Officers’ Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in
the
opinion of such counsel, all such conditions precedent have been complied
with.
Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided
for in
this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based; (3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not in the opinion of
such person, such condition or covenant has been complied with.
Section
14.7. Table
of Contents, Headings, etc.
The
table
of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to
be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section
14.8. Execution
in Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall
be
an original, but such counterparts shall together constitute but one and
the
same instrument.
Section
14.9. Separability.
In
case
any one or more of the provisions contained in this Indenture or in the
Debentures shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect
any other provisions of this Indenture or of such Debentures, but this Indenture
and such Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section
14.10. Assignment.
The
Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties hereto.
Section
14.11. Acknowledgment
of Rights.
The
Company agrees that, with respect to any Debentures held by the Trust or
the
Institutional Trustee of the Trust, if the Institutional Trustee of the Trust
fails to enforce its rights under this Indenture as the holder of Debentures
held as the assets of such Trust after the holders of a majority in Liquidation
Amount of the Capital Securities of such Trust have so directed such
Institutional Trustee, a holder of record of such Capital Securities may,
to the
fullest extent permitted by law, institute legal proceedings directly against
the Company to enforce such Institutional Trustee’s rights under this Indenture
without first instituting any legal proceedings against such trustee or any
other Person. Notwithstanding the foregoing, if an Event of Default
has occurred and is continuing and such event is attributable to the failure
of
the Company to pay interest (or premium, if any) or principal on the Debentures
on the date such interest (or premium, if any) or principal is otherwise
payable
(or in the case of redemption, on the redemption date), the Company agrees
that
a holder of record of Capital Securities of the Trust may directly institute
a
proceeding against the Company for enforcement of payment to such holder
directly of the principal of (or premium, if any) or interest on the Debentures
having an aggregate principal amount equal to the aggregate Liquidation Amount
of the Capital Securities of such holder on or after the respective due date
specified in the Debentures.
ARTICLE
XV.
SUBORDINATION
OF DEBENTURES
Section
15.1. Agreement
to Subordinate.
The
Company covenants and agrees, and each holder of Debentures by such
Securityholder’s acceptance thereof likewise covenants and agrees, that all
Debentures shall be issued subject to the provisions of this Article XV;
and each holder of a Debenture, whether upon original issue or upon transfer
or
assignment thereof, accepts and agrees to be bound by such
provisions.
The
payment by the Company of the principal of, and premium, if any, and interest
on
all Debentures shall, to the extent and in the manner hereinafter set forth,
be
subordinated and junior in right of payment to the prior payment in full
of all
Senior Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred; provided,
however, that the Debentures shall rank pari passu in all
material respects with any current indebtedness, liabilities or obligations
of
the Company, or any Subsidiary of the Company, under debt securities (or
guarantees in respect of debt securities) issued to any trust, or a trustee
of a
trust, partnership or other entity affiliated with the Company that is, directly
or indirectly, a finance subsidiary (as such term is defined in Rule 3a-5
under
the Investment Company Act of 1940) or other financing vehicle of the Company
or
any Subsidiary of the Company in connection with the issuance by that entity
of
preferred securities or other securities that are eligible to qualify for
Tier 1 capital treatment (or its then equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company.
No
provision of this Article XV shall prevent the occurrence of any default or
Event of Default hereunder.
Section
15.2. Default
on Senior Indebtedness.
In
the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company following any grace period, or in the event that
the
maturity of any Senior Indebtedness of the Company has been accelerated because
of a default and such acceleration has not been rescinded or canceled and
such
Senior Indebtedness has not been paid in full, then, in either case, no payment
shall be made by the Company with respect to the principal (including
redemption) of, or premium, if any, or interest on the Debentures.
In
the
event that, notwithstanding the foregoing, any payment shall be received
by the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.2, such payment shall, subject to Section 15.7, be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of
Senior Indebtedness or their respective representatives, or to the trustee
or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only
to the
extent that the holders of the Senior Indebtedness (or their representative
or
representatives or a trustee) notify the Trustee in writing within 90 days
of such payment of the amounts then due and owing on the Senior Indebtedness
and
only the amounts specified in such notice to the Trustee shall be paid to
the
holders of Senior Indebtedness.
Section
15.3. Liquidation,
Dissolution, Bankruptcy.
Upon
any
payment by the Company or distribution of assets of the Company of any kind
or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company, on
account
of the principal (and premium, if any) or interest on the
Debentures. Upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of
the
Company of any kind or character, whether in cash, property or securities,
to
which the Securityholders or the Trustee would be entitled to receive from
the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee,
agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under this Indenture if received by them or it, directly
to
the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders,
as
calculated by the Company) or their representative or representatives, or
to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in
full, in money or money’s worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before
any
payment or distribution is made to the Securityholders or to the
Trustee.
In
the
event that, notwithstanding the foregoing, any payment or distribution of
assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee
before
all Senior Indebtedness is paid in full, or provision is made for such payment
in money in accordance with its terms, such payment or distribution shall
be
held in trust for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been issued, as
their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Indebtedness, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance
with
its terms, after giving effect to any concurrent payment or distribution
to or
for the benefit of the holders of such Senior Indebtedness.
For
purposes of this Article XV, the words “cash, property or securities” shall
not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided
for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with
respect to the Debentures to the payment of all Senior Indebtedness, that
may at
the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another corporation or the liquidation
or dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article XI of this Indenture
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for
the purposes of this Section if such other corporation shall, as a part of
such
consolidation, merger, conveyance or transfer, comply with the conditions
stated
in Article XI of this Indenture. Nothing in Section 15.2 or
in this Section shall apply to claims of, or payments to, the Trustee under
or
pursuant to Section 6.6 of this Indenture.
Section
15.4. Subrogation.
Subject
to the payment in full of all Senior Indebtedness, the Securityholders shall
be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company,
applicable to such Senior Indebtedness until the principal of (and premium,
if
any) and interest on the Debentures shall be paid in full. For the
purposes of such subrogation, no payments or distributions to the holders
of
such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions
of
this Article XV, and no payment over pursuant to the provisions of this
Article XV to or for the benefit of the holders of such Senior Indebtedness
by Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders
of the
Debentures be deemed to be a payment or distribution by the Company to or
on
account of such Senior Indebtedness. It is understood that the
provisions of this Article XV are and are intended solely for the purposes
of defining the relative rights of the holders of the Securities, on the
one
hand, and the holders of such Senior Indebtedness, on the other
hand.
Nothing
contained in this Article XV or elsewhere in this Indenture or in the
Debentures is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debentures the principal of (and premium, if
any)
and interest on the Debentures as and when the same shall become due and
payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debentures and creditors of the Company, other
than
the holders of Senior Indebtedness, nor shall anything herein or therein
prevent
the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject
to the rights, if any, under this Article XV of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, received
upon the exercise of any such remedy.
Upon
any
payment or distribution of assets of the Company referred to in this
Article XV, the Trustee, subject to the provisions of Article VI of
this Indenture, and the Securityholders shall be entitled to conclusively
rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered
to
the Trustee or to the Securityholders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article XV.
Section
15.5. Trustee
to Effectuate Subordination.
Each
Securityholder by such Securityholder’s acceptance thereof authorizes and
directs the Trustee on such Securityholder’s behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder’s attorney-in-fact
for any and all such purposes.
Section
15.6. Notice
by the Company.
The
Company shall give prompt written notice to a Responsible Officer of the
Trustee
at the Principal Office of the Trustee of any fact known to the Company that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this
Article XV or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit
the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XV, unless and until
a Responsible Officer of the Trustee at the Principal Office of the Trustee
shall have received written notice thereof from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions
of
Article VI of this Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section at least
2
Business Days prior to the date upon which by the terms hereof any money
may
become payable for any purpose (including, without limitation, the payment
of
the principal of (or premium, if any) or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same
to the
purposes for which they were received, and shall not be affected by any notice
to the contrary that may be received by it within 2 Business Days prior to
such
date.
The
Trustee, subject to the provisions of Article VI of this Indenture, shall
be entitled to conclusively rely on the delivery to it of a written notice
by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder), to establish that such notice
has
been given by a holder of such Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required
with
respect to the right of any Person as a holder of such Senior Indebtedness
to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness
held by
such Person, the extent to which such Person is entitled to participate in
such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as
to the right of such Person to receive such payment.
Section
15.7. Rights
of the Trustee; Holders of Senior
Indebtedness.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article XV in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights
as such
holder.
With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform
or to observe only such of its covenants and obligations as are specifically
set
forth in this Article XV, and no implied covenants or obligations with
respect to the holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Indebtedness and, subject
to
the provisions of Article VI of this Indenture, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or
deliver
to Securityholders, the Company or any other Person money or assets to which
any
holder of such Senior Indebtedness shall be entitled by virtue of this
Article XV or otherwise.
Nothing
in this Article XV shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6.
Section
15.8. Subordination
May Not Be Impaired.
No
right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced
or
impaired by any act or failure to act on the part of the Company, or by any
act
or failure to act, in good faith, by any such holder, or by any noncompliance
by
the Company, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Securityholders, without incurring
responsibility to the Securityholders and without impairing or releasing
the
subordination provided in this Article XV or the obligations hereunder of
the holders of the Debentures to the holders of such Senior Indebtedness,
do any
one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior
Indebtedness or any instrument evidencing the same or any agreement under
which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
Signatures
appear on the following page
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized, as of the
day
and year first above written.
COMMUNITY
BANCORP.
By
/s/Richard C. White
Name:
Richard
C.
White
Title:
Chairman
&
CEO
WILMINGTON
TRUST COMPANY, as Trustee
By
/s/ W. T. Morris, II
Name:
W. Thomas
Morris, II
Title:
Assistant Vice President
EXHIBIT
A
FORM
OF FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE
[FORM
OF
FACE OF SECURITY]
THIS
SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE
UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT
INSURANCE CORPORATION.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER
OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF
LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY
IS NOT
PROHIBITED BY SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION
3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE,
A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN,
OR
ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN
OR PLAN
TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY
IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00
SHALL
BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED
BY THE
INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Fixed/Floating
Rate Junior Subordinated Deferrable Interest Debenture
of
Community
Bancorp.
October 31,
2007
Community
Bancorp., a Vermont corporation (the “Company” which term includes any successor
Person under the Indenture hereinafter referred to), for value received promises
to pay to Wilmington Trust Company, not in its individual capacity but solely
as
Institutional Trustee for CMTV Statutory Trust I (the “Holder”) or
registered assigns, the principal sum of twelve million eight hundred
eighty-seven thousand dollars ($12,887,000.00) on December 15, 2037, and to
pay interest on said principal sum from October 31, 2007, or from the most
recent Interest Payment Date (as defined below) to which interest has been
paid
or duly provided for, quarterly (subject to deferral as set forth herein)
in
arrears on March 15, June 15, September 15 and December 15
of each year or if such day is not a Business Day, then the next succeeding
Business Day (each such date, an “Interest Payment Date”) (it being understood
that interest accrues for any such non-Business Day during the applicable
Distribution Period, beginning on or after December 15, 2012), commencing
on the Interest Payment Date in December 2007, at an annual rate equal to
7.56%
beginning on (and including) the date of original issuance and ending on
(but
excluding) the Interest Payment Date in December 2012 and at an annual rate
for
each successive period beginning on (and including) the Interest Payment
Date in
December 2012, and each succeeding Interest Payment Date, and ending on (but
excluding) the next succeeding Interest Payment Date (each a “Distribution
Period”), equal to 3-Month LIBOR, determined as described below, plus 2.85% (the
“Coupon Rate”), applied to the principal amount hereof, until the principal
hereof is paid or duly provided for or made available for payment, and on
any
overdue principal and (without duplication and to the extent that payment
of
such interest is enforceable under applicable law) on any overdue installment
of
interest (including Additional Interest) at the Interest Rate in effect for
each
applicable period, compounded quarterly, from the dates such amounts are
due
until they are paid or made available for payment. The amount of
interest payable (i) for any Distribution Period commencing on or after the
date of original issuance but before the Interest Payment Date in December
2012
will be computed on the basis of a 360-day year of twelve 30-day months,
and
(ii) for the Distribution Period commencing on the Interest Payment Date in
December 2012 and each succeeding Distribution Period will be computed on
the
basis of the actual number of days in the Distribution Period concerned divided
by 360. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or
more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, which shall be fifteen Business
Days
prior to the day on which the relevant Interest Payment Date
occurs. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such regular
record date and may be paid to the Person in whose name this Debenture (or
one
or more Predecessor Securities) is registered at the close of business on
a
special record date.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following
order of priority: (i) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that appears on Reuters
Page LIBOR01 as of 11:00 a.m. (London time) on the related Determination
Date
(“Reuters Page LIBOR01” means the display designated as “LIBOR01” on Reuters or
such other page as may replace Reuters Page LIBOR01 on that service or such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate cannot
be
identified on the related Determination Date, the Trustee will request the
principal London offices of four leading banks in the London interbank market
to
provide such banks’ offered quotations (expressed as percentages per annum) to
prime banks in the London interbank market for U.S. dollar deposits having
a
three-month maturity as of 11:00 a.m. (London time) on such Determination
Date. If at least two quotations are provided, 3-Month LIBOR will be
the arithmetic mean of such quotations; (iii) if fewer than two such
quotations are provided as requested in clause (ii) above, the Trustee will
request four major New York City banks to provide such banks’ offered quotations
(expressed as percentages per annum) to leading European banks for loans
in U.S.
dollars as of 11:00 a.m. (London time) on such Determination Date. If
at least two such quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations; and (iv) if fewer than two such quotations are
provided as requested in clause (iii) above, 3-Month LIBOR will be a 3-Month
LIBOR determined with respect to the Distribution Period immediately preceding
such current Distribution Period. If the rate for U.S. dollar
deposits having a three-month maturity that initially appears on Reuters
Page
LIBOR01 as of 11:00 a.m. (London time) on the related Determination Date
is
superseded on the Reuters Page LIBOR01 by a corrected rate by 12:00 noon
(London
time) on such Determination Date, then the corrected rate as so substituted
on
the applicable page will be the applicable 3-Month LIBOR for such Determination
Date. As used herein, “Determination Date” means the date that is two
London Banking Days (i.e., a business day in which dealings in deposits in
U.S.
dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period.
The
Interest Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Debentures will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545%
(or
.09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent
(with
one-half cent being rounded upward)).
The
principal of and interest on this Debenture shall be payable at the office
or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States
of
America that at the time of payment is legal tender for payment of public
and
private debts; provided, however, that payment of interest may be
made by check mailed to the registered holder at such address as shall appear
in
the Debenture Register if a request for a wire transfer by such holder has
not
been received by the Company or by wire transfer to an account appropriately
designated by the holder hereof. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Institutional Trustee, the payment
of the principal of and interest on this Debenture will be made in immediately
available funds at such place and to such account as may be designated by
the
Trustee.
So
long
as no Acceleration Event of Default has occurred and is continuing, the Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debentures by extending the
interest payment period on the Debentures at any time and from time to time
during the term of the Debentures, for up to 20 consecutive quarterly
periods (each such extended interest payment period, an “Extension Period”),
during which Extension Period no interest (including Additional Interest)
shall
be due and payable (except any Additional Sums that may be due and
payable). No Extension Period may end on a date other than an
Interest Payment Date. During an Extension Period, interest will
continue to accrue on the Debentures, and interest on such accrued interest
will
accrue at an annual rate equal to the Interest Rate in effect for such Extension
Period, compounded quarterly from the date such interest would have been
payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). At the end of
any such Extension Period the Company shall pay all interest then accrued
and
unpaid on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond the
Maturity Date; providedfurther, however, that during any
such Extension Period, the Company shall not and shall not permit any Affiliate
to engage in any of the activities or transactions described on the reverse
side
hereof and in the Indenture. Prior to the termination of any
Extension Period, the Company may further extend such period, provided that
such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the Maturity Date. Upon the termination of any Extension Period and
upon the payment of all accrued and unpaid interest and Additional Interest,
the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. The Company
must give the Trustee notice of its election to begin or extend an Extension
Period by the close of business at least 15 Business Days prior to the Interest
Payment Date with respect to which interest on the Debentures would have
been
payable except for the election to begin or extend such Extension
Period.
The
indebtedness evidenced by this Debenture is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness, and this Debenture is issued subject to
the
provisions of the Indenture with respect thereto. Each holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance
of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This
Debenture shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been signed by or on behalf of the
Trustee.
The
provisions of this Debenture are continued on the reverse side hereof and
such
provisions shall for all purposes have the same effect as though fully set
forth
at this place.
IN
WITNESS WHEREOF, the Company has duly executed this certificate.
COMMUNITY
BANCORP.
By
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Debentures referred to in the within-mentioned
Indenture.
WILMINGTON
TRUST COMPANY, as Trustee
By:
Authorized
Officer
[FORM
OF
REVERSE OF DEBENTURE]
This
Debenture is one of the fixed/floating rate junior subordinated deferrable
interest debentures of the Company, all issued or to be issued under and
pursuant to the Indenture dated as of October 31, 2007 (the “Indenture”),
duly executed and delivered between the Company and the Trustee, to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee,
the
Company and the holders of the Debentures. The Debentures are limited
in aggregate principal amount as specified in the Indenture.
Upon
the
occurrence and continuation of a Special Event prior to the Interest Payment
Date in December 2012, the Company shall have the right to redeem the Debentures
in whole, but not in part, at any Interest Payment Date, within 120 days
following the occurrence of such Special Event, at the Special Redemption
Price.
In
addition, the Company shall have the right to redeem the Debentures, in whole
or
in part, but in all cases in a principal amount with integral multiples of
$1,000.00, on any Interest Payment Date on or after the Interest Payment
Date in
December 2012, at the Redemption Price.
Prior
to
10:00 a.m. New York City time on the Redemption Date or Special Redemption
Date,
as applicable, the Company will deposit with the Trustee or with one or more
paying agents an amount of money sufficient to redeem on the Redemption Date
or
the Special Redemption Date, as applicable, all the Debentures so called
for
redemption at the appropriate Redemption Price or Special Redemption
Price.
If
all,
or less than all, the Debentures are to be redeemed, the Company will give
the
Trustee notice not less than 45 nor more than 60 days, respectively, prior
to the Redemption Date or Special Redemption Date, as applicable, as to the
aggregate principal amount of Debentures to be redeemed and the Trustee shall
select, in such manner as in its sole discretion it shall deem appropriate
and
fair, the Debentures or portions thereof (in integral multiples of $1,000.00)
to
be redeemed.
Notwithstanding
the foregoing, any redemption of Debentures by the Company shall be subject
to
the receipt of any and all required regulatory approvals.
In
case
an Acceleration Event of Default shall have occurred and be continuing, upon
demand of the Trustee, the principal of all of the Debentures shall become
due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of not less than a majority in aggregate principal
amount
of the Debentures at the time outstanding, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures; provided, however, that no such supplemental indenture
shall without the consent of the holders of each Debenture then outstanding
and
affected thereby (i) change the fixed maturity of any Debenture, or reduce
the principal amount thereof or any premium thereon, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount payable
on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the
Debentures, or impair or affect the right of any Securityholder to institute
suit for payment thereof or impair the right of repayment, if any, at the
option
of the holder, or (ii) reduce the aforesaid percentage of Debentures the
holders of which are required to consent to any such supplemental
indenture.
The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding on behalf
of the holders of all of the Debentures to waive (or modify any previously
granted waiver of) any past default or Event of Default, and its consequences,
except a default (a) in the payment of principal of, premium, if any, or
interest on any of the Debentures, (b) in respect of covenants or
provisions hereof or of the Indenture which cannot be modified or amended
without the consent of the holder of each Debenture affected, or (c) in
respect of the covenants contained in Section 3.9 of the Indenture;
provided, however, that if the Debentures are held by the Trust or
a trustee of such trust, such waiver or modification to such waiver shall
not be
effective until the holders of a majority in Liquidation Amount of Trust
Securities of the Trust shall have consented to such waiver or modification
to
such waiver, provided, further, that if the consent of the holder
of each outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities of the Trust shall have consented
to
such waiver. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of the Indenture and the Company,
the
Trustee and the holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to
any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by the Indenture, said default
or
Event of Default shall for all purposes of the Debentures and the Indenture
be
deemed to have been cured and to be not continuing.
No
reference herein to the Indenture and no provision of this Debenture or of
the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and interest,
including Additional Interest, on this Debenture at the time and place and
at
the rate and in the money herein prescribed.
The
Company has agreed that if Debentures are initially issued to the Trust or
a
trustee of such Trust in connection with the issuance of Trust Securities
by the
Trust (regardless of whether Debentures continue to be held by such Trust)
and
(i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on
the
Debentures by extending the interest payment period as provided herein and
such
Extension Period, or any extension thereof, shall be continuing, then the
Company shall not, and shall not allow any Affiliate of the Company to,
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or its Affiliates’ capital stock (other than payments of dividends
or distributions to the Company or payments of dividends from direct or indirect
subsidiaries of the Company to their parent corporations, which also shall
be
direct or indirect subsidiaries of the Company) or make any guarantee payments
with respect to the foregoing or (y) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company or any Affiliate that rank pari passu in all
respects with or junior in interest to the Debentures (other than, with respect
to clauses (x) and (y) above, (1) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company in connection
with
any employment contract, benefit plan or other similar arrangement with or
for
the benefit of one or more employees, officers, directors or consultants,
in
connection with a dividend reinvestment or stockholder stock purchase plan
or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration
in an
acquisition transaction entered into prior to the applicable Extension Period,
if any, (2) as a result of any exchange or conversion of any class or
series of the Company’s capital stock (or any capital stock of a subsidiary of
the Company) for any class or series of the Company’s capital stock or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s capital stock, (3) the purchase of fractional interests in shares
of the Company’s capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, (4) any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto, (5) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks pari passu with or junior to such stock and any cash payments in
lieu of fractional shares issued in connection therewith, (6) payments of
principal or interest on debt securities or payments of cash dividends or
distributions on any capital stock issued by an Affiliate that is not, in
whole
or in part, a subsidiary of the Company (or any redemptions, repurchases
or
liquidation payments on such stock or securities), or (7) payments under
the Capital Securities Guarantee).
The
Debentures are issuable only in registered, certificated form without coupons
and in minimum denominations of $100,000.00 and any multiple of $1,000.00
in
excess thereof. As provided in the Indenture and subject to the
transfer restrictions and limitations as may be contained herein and therein
from time to time, this Debenture is transferable by the holder hereof on
the
Debenture Register of the Company. Upon due presentment for
registration of transfer of any Debenture at the Principal Office of the
Trustee
or at any office or agency of the Company maintained for such purpose as
provided in Section 3.2 of the Indenture, the Company shall execute, the
Company or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the
transferee or transferees a new Debenture for a like aggregate principal
amount. All Debentures presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or
the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to, the Company
and
the Trustee or the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing. No service charge shall be made
for any exchange or registration of transfer of Debentures, but the Company
or
the Trustee may require payment of a sum sufficient to cover any tax, fee
or
other governmental charge that may be imposed in connection
therewith.
Prior
to
due presentment for registration of transfer of any Debenture, the Company,
the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and
any
Debenture registrar may deem the Person in whose name such Debenture shall
be
registered upon the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be overdue)
for the
purpose of receiving payment of or on account of the principal of, premium,
if
any, and interest on such Debenture and for all other purposes; and neither
the
Company nor the Trustee nor any Authenticating Agent nor any paying agent
nor
any transfer agent nor any Debenture registrar shall be affected by any notice
to the contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the sum or
sums so
paid, effectual to satisfy and discharge the liability for moneys payable
upon
any such Debenture.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, officer or
director, as such, past, present or future, of the Company or of any successor
Person of the Company, either directly or through the Company or any successor
Person of the Company, whether by virtue of any constitution, statute or
rule of
law, or by the enforcement of any assessment or penalty or otherwise, it
being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of
the
Indenture and the issue of the Debentures.
Capitalized
terms used and not defined in this Debenture shall have the meanings assigned
in
the Indenture dated as of the date of original issuance of this Debenture
between the Trustee and the Company.
THE
INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES THEREOF.
EXHIBIT
B
FORM
OF CERTIFICATE TO TRUSTEE
Pursuant
to Section 3.5 of the
Indenture between Community Bancorp., as the Company (the “Company”), and
Wilmington Trust Company, as Trustee, dated as of October 31, 2007 (the
“Indenture”), the undersigned hereby certifies as follows:
1.
|
In
my capacity as an officer of the Company, I would normally have
knowledge
of any default by the Company during the last fiscal year in the
performance of any covenants of the Company contained in the
Indenture.
|
2.
|
[To
my knowledge, the Company is not in default in the performance
of any
covenants contained in the
Indenture.
|
or,
alternatively:
I
am
aware of the default(s) in the performance of covenants in the Indentures,
as
specified below.]
Capitalized
terms used herein, and not
otherwise defined herein, have the respective meanings ascribed thereto in
the
Indenture.
IN
WITNESS WHEREOF, the undersigned has
executed this Certificate.
Date:
______________________________
Name:
Title:
EXHIBIT
C
FORM
OF QUARTERLY REPORT
Wilmington
Trust Company
1100
N.
Market Street
Wilmington,
Delaware 19890
Attention:
Corporate Trust Administration - PreTSL
BANK
HOLDING COMPANY
As
of
[March 31, June 30, September 30 or December 31], 20__
Tier
1 to Risk Weighted Assets
|
_________%
|
|
|
Ratio
of Double Leverage
|
_________%
|
|
|
Non-Performing
Assets to Loans and OREO
|
_________%
|
|
|
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
|
_________%
|
|
|
Total
Assets
|
$__________
|
|
|
Year
to Date Income
|
$__________
|
*A
table
describing the quarterly report calculation procedures is provided on page
C-2
**
To
annualize Return on Average Assets and Net Interest Margin do the
following:
1st
Quarter-multiply
income statement item by 4, then divide by balance sheet item(s)
2nd
Quarter-multiply
income statement item by 2, then divide by balance sheet item(s)
3rd
Quarter-divide
income statement item by 3, then multiply by 4, then divide by balance sheet
item(s)
4th
Quarter-should
already be an annual number
NO
ADJUSTMENT SHOULD BE MADE TO BALANCE SHEET ITEMS
cc: FTN
Financial Capital
Markets Keefe,
Bruyette & Woods, Inc.
845
Crossover Lane, Suite
150 787
7th Avenue, 4th Floor
Memphis,
Tennessee 38117 New
York, New York 10019
Attention: Structured
Finance
Group Attention: Mitchell
Kleinman, General Counsel
Financial
Definitions
Report
Item
|
Description
of Calculation
|
“Tier
1 Capital” to Risk Weighted Assets
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
Ratio
of Double Leverage
|
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
nonbank subsidiaries.
|
Non-Performing
Assets to Loans and OREO
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/ Total Loans + Foreclosed Real
Estate
|
Ratio
of Reserves to Non-Performing Loans
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual + Restructured)
|
Ratio
of Net Charge-Offs to Loans
|
Net
charge offs for the period as a percentage of average
loans.
|
Return
on Assets
|
Net
Income as a percentage of Assets.
|
Net
Interest Margin
|
(Net
Interest Income Fully Taxable Equivalent, if available / Average
Earning
Assets)
|
Efficiency
Ratio
|
(Noninterest
Expense)/ (Net Interest Income Fully Taxable Equivalent, if
available, plus Noninterest Income)
|
Ratio
of Loans to Assets
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/ Total
Assets
|
Ratio
of Loans to Deposits
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/ Total
Deposits (Includes Domestic and Foreign Deposits)
|
Total
Assets
|
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
|
The
sum of income (loss) before extraordinary items and other adjustments
and
extraordinary items; and other adjustments, net of income
taxes.
|
EX-4.2
3
amendeddeclaration.htm
AMENDED AND RESTATED DECLARATION
amendeddeclaration.htm
Exhibit
4.2
AMENDED
AND RESTATED DECLARATION
OF
TRUST
by
and among
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee,
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee,
COMMUNITY
BANCORP.,
as
Sponsor,
and
RICHARD C.
WHITE, ALAN A. WING and
STEPHEN P.
MARSH,
as
Administrators,
Dated
as of October 31, 2007
1414422.1
Community
Bancorp./Amended and Restated Declaration of
Trust
TABLE
OF CONTENTS
Page
ARTICLE
I INTERPRETATION AND DEFINITIONS
Section
1.1.Definitions.
ARTICLE
II ORGANIZATION
Section
2.1.Name.
Section
2.2.Office.
Section
2.3.Purpose.
Section
2.4.Authority.
Section
2.5.Title to Property
of the
Trust.
Section
2.6.Powers and
Duties of the Trustees
and the Administrators.
Section
2.7.Prohibition
of Actions by the
Trust and the Institutional Trustee.
Section
2.8.Powers and
Duties of the
Institutional Trustee.
Section
2.9.Certain Duties
and
Responsibilities of the Trustees and Administrators.
Section
2.10.Certain Rights
of Institutional
Trustee.
Section
2.11.Delaware
Trustee.
Section
2.12.Execution
of
Documents.
Section
2.13.Not Responsible
for Recitals or
Issuance of Securities.
Section
2.14.Duration of
Trust.
Section
2.15.Mergers.
ARTICLE
III SPONSOR
Section
3.1.Sponsor’s Purchase
of Common
Securities.
Section
3.2.Responsibilities
of the
Sponsor.
Section
3.3.Expenses.
Section
3.4.Right to
Proceed.
ARTICLE
IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
Section
4.1.Number of
Trustees.
Section
4.2.Delaware Trustee;
Eligibility.
Section
4.3.Institutional
Trustee;
Eligibility.
Section
4.4.Administrators.
Section
4.5.Appointment,
Removal and
Resignation of Trustees and Administrators.
Section
4.6.Vacancies
Among
Trustees.
Section
4.7.Effect of
Vacancies.
Section
4.8.Meetings of
the Trustees and the
Administrators.
Section
4.9.Delegation
of
Power.
Section
4.10.Conversion,
Consolidation or
Succession to Business.
ARTICLE
V DISTRIBUTIONS
Section
5.1.Distributions.
ARTICLE
VI ISSUANCE OF SECURITIES
Section
6.1.General Provisions
Regarding
Securities.
Section
6.2.Paying Agent,
Transfer Agent and
Registrar.
Section
6.3.Form and
Dating.
Section
6.4.Mutilated,
Destroyed, Lost or
Stolen Certificates.
Section
6.5.Temporary
Securities.
Section
6.6.Cancellation.
Section
6.7.Rights of
Holders; Waivers of
Past Defaults.
ARTICLE
VII DISSOLUTION AND TERMINATION OF TRUST
Section
7.1.Dissolution
and Termination of
Trust.
ARTICLE
VIII TRANSFER OF INTERESTS
Section
8.1.General.
Section
8.2.Transfer Procedures
and
Restrictions.
Section
8.3.Deemed Security
Holders.
ARTICLE
IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL
TRUSTEE
OR OTHERS
Section
9.1.Liability.
Section
9.2.Exculpation.
Section
9.3.Fiduciary
Duty.
Section
9.4.Indemnification.
Section
9.5.Outside
Businesses.
Section
9.6.Compensation;
Fee.
ARTICLE
X ACCOUNTING
Section
10.1.Fiscal Year.
Section
10.2.Certain Accounting
Matters.
Section
10.3.Banking.
Section
10.4.Withholding.
ARTICLE
XI AMENDMENTS AND MEETINGS
Section
11.1.Amendments.
Section
11.2.Meetings of
the Holders of
Securities; Action by Written Consent.
ARTICLE
XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE
TRUSTEE
Section
12.1.Representations
and Warranties of
Institutional Trustee.
Section
12.2.Representations
of the Delaware
Trustee.
ARTICLE
XIII MISCELLANEOUS
Section
13.1.Notices.
Section
13.2.Governing
Law.
Section
13.3.Intention
of the
Parties.
Section
13.4.Headings.
Section
13.5.Successors
and
Assigns.
Section
13.6.Partial
Enforceability.
Section
13.7.Counterparts.
|
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1
8
8
8
8
8
8
8
12
12
14
15
17
17
17
17
17
19
19
19
19
20
20
20
20
20
21
21
23
23
23
23
23
24
24
24
24
25
25
25
26
26
26
28
28
28
28
29
31
31
31
32
32
33
35
35
35
35
35
36
36
36
36
38
39
39
39
40
40
41
41
41
42
42
42
|
Annex
I Terms
of Securities
Exhibit
A-1 Form
of Capital Security Certificate
Exhibit
A-2 Form
of Common Security Certificate
Exhibit
B Specimen
of Initial Debenture
Exhibit
C Placement
Agreement
AMENDED
AND RESTATED
DECLARATION
OF TRUST
OF
CMTV
STATUTORY TRUST I
October 31,
2007
AMENDED
AND RESTATED DECLARATION OF TRUST (“Declaration”) dated and effective as
of October 31, 2007, by the Trustees (as defined herein), the
Administrators (as defined herein), the Sponsor (as defined herein) and by
the
holders, from time to time, of undivided beneficial interests in the Trust
(as
defined herein) to be issued pursuant to this Declaration;
WHEREAS,
the Trustees, the Administrators and the Sponsor established CMTV Statutory
Trust I (the “Trust”), a statutory trust under the Statutory Trust
Act (as defined herein) pursuant to a Declaration of Trust dated as of October
25, 2007 (the “Original Declaration”), and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on October 25, 2007, for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain debentures of the Debenture Issuer (as defined
herein);
WHEREAS,
as of the date hereof, no interests in the Trust have been issued;
and
WHEREAS,
the Trustees, the Administrators and the Sponsor, by this Declaration, amend
and
restate each and every term and provision of the Original
Declaration;
NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust
as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes the governing instrument of such statutory trust, the Trustees
declare that all assets contributed to the Trust will be held in trust for
the
benefit of the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration. The parties hereto
hereby agree as follows:
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
Section
1.1. Definitions.
Unless
the context otherwise requires:
(a)
Capitalized
terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section
1.1;
(b)
a
term
defined anywhere in this Declaration has the same meaning
throughout;
(c)
all
references to “the Declaration” or “this Declaration” are to this Declaration as
modified, supplemented or amended from time to time;
(d)
all
references in this Declaration to Articles and Sections and Annexes and Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified; and
(e)
a
reference to the singular includes the plural and vice versa.
“Acceleration
Event of Default” has the meaning set forth in the Indenture.
“Additional
Interest” has the meaning set forth in the Indenture.
“Administrative
Action” has the meaning set forth in paragraph 4(a) of
Annex I.
“Administrators”
means each of Richard C. White, Alan A. Wing and Stephen P.
Marsh, solely in such Person’s capacity as Administrator of the Trust created
and continued hereunder and not in such Person’s individual capacity, or such
Administrator’s successor in interest in such capacity, or any successor
appointed as herein provided.
“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.
“Authorized
Officer” of a Person means any Person that is authorized to bind such
Person.
“Bankruptcy
Event” means, with respect to any Person:
(a) a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of
90 consecutive days; or
(b) such
Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to
the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of such
Person of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due.
“Business
Day” means any day other than Saturday, Sunday or any other day on which
banking institutions in New York City or Wilmington, Delaware are permitted
or
required by any applicable law or executive order to close.
“Capital
Securities” has the meaning set forth in paragraph 1(a) of
Annex I.
“Capital
Security Certificate” means a definitive Certificate in fully registered
form representing a Capital Security substantially in the form of
Exhibit A-1.
“Capital
Treatment Event” has the meaning set forth in paragraph 4(a) of
Annex I.
“Certificate”
means any certificate evidencing Securities.
“Closing
Date” has the meaning set forth in the Placement Agreement.
“Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.
“Common
Securities” has the meaning set forth in paragraph 1(b) of
Annex I.
“Common
Security Certificate” means a definitive Certificate in fully registered
form representing a Common Security substantially in the form of
Exhibit A-2.
“Company
Indemnified Person” means (a) any Administrator; (b) any Affiliate
of any Administrator; (c) any officers, directors, shareholders, members,
partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its
Affiliates.
“Comparable
Treasury Issue” has the meaning set forth in paragraph 4(a) of
Annex I.
“Comparable
Treasury Price” has the meaning set forth in paragraph 4(a) of
Annex I.
“Corporate
Trust Office” means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular
time, be principally administered, which office at the date of execution of
this
Declaration is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600, Attn: Corporate Trust
Administration.
“Coupon
Rate” has the meaning set forth in paragraph 2(a) of
Annex I.
“Covered
Person” means: (a) any Administrator, officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) any of the Trust’s Affiliates; and (b) any Holder of
Securities.
“Creditor”
has the meaning set forth in Section 3.3.
“Debenture
Issuer” means Community Bancorp., a Vermont corporation, in its capacity as
issuer of the Debentures under the Indenture.
“Debenture
Trustee” means Wilmington Trust Company, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor
trustee.
“Debentures”
means the Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2037 to be issued by the Debenture Issuer under the Indenture.
“Defaulted
Interest” has the meaning set forth in the Indenture.
“Delaware
Trustee” has the meaning set forth in Section 4.2.
“Determination
Date” has the meaning set forth in paragraph 4(a) of
Annex I.
“Direct
Action” has the meaning set forth in Section 2.8(d).
“Distribution”
means a distribution payable to Holders of Securities in accordance with Section
5.1.
“Distribution
Payment Date” has the meaning set forth in paragraph 2(b) of
Annex I.
“Distribution
Period” means (i) with respect to the Distribution paid on the first
Distribution Payment Date, the period beginning on (and including) the date
of
original issuance and ending on (but excluding) the Distribution Payment Date
in
December 2007 and (ii) thereafter, with respect to a Distribution paid on
each successive Distribution Payment Date, the period beginning on (and
including) the preceding Distribution Payment Date and ending on (but excluding)
such current Distribution Payment Date.
“Distribution
Rate” means, for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Distribution Payment
Date in December 2012, the rate per annum of 7.56%, and for each Distribution
Period beginning on or after the Distribution Payment Date in December 2012,
the
Coupon Rate for such Distribution Period.
“Event
of Default” means any one of the following events (whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected
by
operation of law or pursuant to any judgment, decree or order of any court
or
any order, rule or regulation of any administrative or governmental
body):
(a) the
occurrence of an Indenture Event of Default; or
(b) default
by the Trust in the payment of any Redemption Price or Special Redemption Price
of any Security when it becomes due and payable; or
(c) default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Institutional Trustee in this Declaration (other than those
specified in clause (a) or (b) above) and continuation of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail to the Institutional Trustee and to the Sponsor by the Holders
of
at least 25% in aggregate liquidation amount of the outstanding Capital
Securities, a written notice specifying such default or breach and requiring
it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(d) the
occurrence of a Bankruptcy Event with respect to the Institutional Trustee
if a
successor Institutional Trustee has not been appointed within 90 days
thereof.
“Extension
Period” has the meaning set forth in paragraph 2(b) of
Annex I.
“Federal
Reserve” has the meaning set forth in paragraph 3 of
Annex I.
“Fiduciary
Indemnified Person” shall mean each of the Institutional Trustee (including
in its individual capacity), the Delaware Trustee (including in its individual
capacity), any Affiliate of the Institutional Trustee or Delaware Trustee and
any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Institutional Trustee
or
Delaware Trustee.
“Fiscal
Year” has the meaning set forth in Section 10.1.
“Fixed
Rate Period Remaining Life” has the meaning set forth in paragraph 4(a)
of Annex I.
“Guarantee”
means the guarantee agreement to be dated as of the Closing Date, of the Sponsor
in respect of the Capital Securities.
“Holder”
means a Person in whose name a Certificate representing a Security is
registered, such Person being a beneficial owner within the meaning of the
Statutory Trust Act.
“Indemnified
Person” means a Company Indemnified Person or a Fiduciary Indemnified
Person.
“Indenture”
means the Indenture dated as of the Closing Date, between the Debenture Issuer
and the Debenture Trustee, and any indenture supplemental thereto pursuant
to
which the Debentures are to be issued, as such Indenture and any supplemental
indenture may be amended, supplemented or otherwise modified from time to
time.
“Indenture
Event of Default” means an “Event of Default” as defined in the
Indenture.
“Institutional
Trustee” means the Trustee meeting the eligibility requirements set forth in
Section 4.3.
“Interest”
means any interest due on the Debentures including any Additional Interest
and
Defaulted Interest.
“Investment
Company” means an investment company as defined in the Investment Company
Act.
“Investment
Company Act” means the Investment Company Act of 1940, as amended from time
to time, or any successor legislation.
“Investment
Company Event” has the meaning set forth in paragraph 4(a) of
Annex I.
“Liquidation”
has the meaning set forth in paragraph 3 of Annex I.
“Liquidation
Distribution” has the meaning set forth in paragraph 3 of
Annex I.
“Majority
in liquidation amount of the Securities” means Holder(s) of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of more
than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
of
all outstanding Securities of the relevant class.
“Maturity
Date” has the meaning set forth in paragraph 4(a) of Annex I.
“Officers’
Certificates” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant providing
for
it in this Declaration shall include:
(a) a
statement that each officer signing the Certificate has read the covenant or
condition and the definitions relating thereto;
(b) a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Certificate;
(c) a
statement that each such officer has made such examination or investigation
as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of each such officer, such condition
or
covenant has been complied with.
“OTS”
has the meaning set forth in paragraph 3 of Annex I.
“Paying
Agent” has the meaning specified in Section 6.2.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Placement
Agreement” means the Placement Agreement relating to the offering and sale
of Capital Securities in the form of Exhibit C.
“Primary
Treasury Dealer” has the meaning set forth in paragraph 4(a) of
Annex I.
“Property
Account” has the meaning set forth in Section2.8(c).
“Pro
Rata” has the meaning set forth in paragraph 8 of
Annex I.
“Quorum”
means a majority of the Administrators or, if there are only two Administrators,
both of them.
“Quotation
Agent” has the meaning set forth in paragraph 4(a) of
Annex I.
“Redemption
Date” has the meaning set forth in paragraph 4(a) of
Annex I.
“Redemption/Distribution
Notice” has the meaning set forth in paragraph 4(e) of
Annex I.
“Redemption
Price” has the meaning set forth in paragraph 4(e) of
Annex I.
“Reference
Treasury Dealer” has the meaning set forth in paragraph 4(a) of
Annex I.
“Reference
Treasury Dealer Quotations” has the meaning set forth in paragraph 4(a)
of Annex I.
“Registrar”
has the meaning set forth in Section 6.2.
“Relevant
Trustee” has the meaning set forth in Section 4.5(a).
“Responsible
Officer” means, with respect to the Institutional Trustee, any officer
within the Corporate Trust Office of the Institutional Trustee, including any
vice-president, any assistant vice-president, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.
“Restricted
Securities Legend” has the meaning set forth in Section 8.2(b).
“Rule 3a-5”
means Rule 3a-5 under the Investment Company Act.
“Rule 3a-7”
means Rule 3a-7 under the Investment Company Act.
“Securities”
means the Common Securities and the Capital Securities.
“Securities
Act” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
“Special
Event” has the meaning set forth in paragraph 4(a) of
Annex I.
“Special
Redemption Date” has the meaning set forth in paragraph 4(a) of
Annex I.
“Special
Redemption Price” has the meaning set forth in paragraph 4(a) of
Annex I.
“Sponsor”
means Community Bancorp., a Vermont corporation, or any successor entity in
a
merger, consolidation or amalgamation, in its capacity as sponsor of the
Trust.
“Statutory
Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§
3801, et seq. as may be amended from time to time.
“Successor
Entity” has the meaning set forth in Section 2.15(b).
“Successor
Delaware Trustee” has the meaning set forth in Section 4.5(e).
“Successor
Institutional Trustee” has the meaning set forth in Section
4.5(b).
“Successor
Securities” has the meaning set forth in Section 2.15(b).
“Super
Majority” has the meaning set forth in paragraph 5(b) of
Annex I.
“Tax
Event” has the meaning set forth in paragraph 4(a) of
Annex I.
“10%
in liquidation amount of the Securities” means Holder(s) of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that
would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
of
all outstanding Securities of the relevant class.
“3-Month
LIBOR” has the meaning set forth in paragraph 4(a) of
Annex I.
“Transfer
Agent” has the meaning set forth in Section 6.2.
“Treasury
Rate” has the meaning set forth in paragraph 4(a) of
Annex I.
“Treasury
Regulations” means the income tax regulations, including temporary and
proposed regulations, promulgated under the Code by the United States Treasury,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
“Trust
Property” means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Property Account and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held
or
deemed to be held by the Institutional Trustee pursuant to the trusts of this
Declaration.
“Trustee”
or “Trustees” means each Person who has signed this Declaration as a
trustee, so long as such Person shall continue in office in accordance with
the
terms hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof,
and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
“U.S.
Person” means a United States Person as defined in Section 7701(a)(30) of
the Code.
ARTICLE
II
ORGANIZATION
Section
2.1. Name.
The
Trust
is named “CMTV Statutory Trust I,” as such name may be modified from time
to time by the Administrators following written notice to the Holders of the
Securities. The Trust’s activities may be conducted under the name of
the Trust or any other name deemed advisable by the Administrators.
Section
2.2. Office.
The
address of the principal office of the Trust is c/o Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600. On at least 10 Business Days
written notice to the Holders of the Securities, the Administrators may
designate another principal office, which shall be in a state of the United
States or in the District of Columbia.
Section
2.3. Purpose.
The
exclusive purposes and functions of the Trust are (a) to issue and sell the
Securities representing undivided beneficial interests in the assets of the
Trust, (b) to invest the gross proceeds from such sale to acquire the
Debentures, (c) to facilitate direct investment in the assets of the Trust
through issuance of the Common Securities and the Capital Securities and
(d) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section
2.4. Authority.
Except
as
specifically provided in this Declaration, the Institutional Trustee shall
have
exclusive and complete authority to carry out the purposes of the
Trust. An action taken by a Trustee in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required
to
inquire into the authority of the Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to
be
trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated except
as
provided in Section 2.6, to perform those duties assigned to the
Administrators.
Section
2.5. Title
to Property of the Trust.
Except
as
provided in Section 2.8 with respect to the Debentures and the Property Account
or as otherwise provided in this Declaration, legal title to all assets of
the
Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
Section
2.6. Powers
and Duties of the Trustees and the Administrators.
(a)
The
Trustees and the Administrators shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the
limitations set forth in paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Trustees and the
Administrators shall have the authority to enter into all transactions and
agreements determined by the Institutional Trustee to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
or the Administrators, as the case may be, under this Declaration, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i)
Each
Administrator shall have the power and authority to act on behalf of the Trust
with respect to the following matters:
(A)
the
issuance and sale of the Securities;
(B)
to
cause
the Trust to enter into, and to execute and deliver on behalf of the Trust,
such
agreements as may be necessary or desirable in connection with the purposes
and
function of the Trust, including agreements with the Paying Agent;
(C)
ensuring
compliance with the Securities Act, applicable state securities or blue sky
laws;
(D)
the
sending of notices (other than notices of default), and other information
regarding the Securities and the Debentures to the Holders in accordance with
this Declaration;
(E)
the
consent to the appointment of a Paying Agent, Transfer Agent and Registrar
in
accordance with this Declaration, which consent shall not be unreasonably
withheld or delayed;
(F)
execution
and delivery of the Securities in accordance with this Declaration;
(G)
execution
and delivery of closing certificates pursuant to the Placement Agreement and
the
application for a taxpayer identification number;
(H)
unless
otherwise determined by the Holders of a Majority in liquidation amount of
the
Securities or as otherwise required by the Statutory Trust Act, to execute
on
behalf of the Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power to execute
pursuant to this Declaration;
(I)
the
taking of any action incidental to the foregoing as the Institutional Trustee
may from time to time determine is necessary or advisable to give effect to
the
terms of this Declaration for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
(J)
to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Capital Securities and Holders of Common Securities as to such actions and
applicable record dates; and
(K)
to
duly
prepare and file all applicable tax returns and tax information reports that
are
required to be filed with respect to the Trust on behalf of the
Trust.
(ii)
As
among
the Trustees and the Administrators, the Institutional Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A)
the
establishment of the Property Account;
(B)
the
receipt of the Debentures;
(C)
the
collection of interest, principal and any other payments made in respect of
the
Debentures in the Property Account;
(D)
the
distribution through the Paying Agent of amounts owed to the Holders in respect
of the Securities;
(E)
the
exercise of all of the rights, powers and privileges of a holder of the
Debentures;
(F)
the
sending of notices of default and other information regarding the Securities
and
the Debentures to the Holders in accordance with this Declaration;
(G)
the
distribution of the Trust Property in accordance with the terms of this
Declaration;
(H)
to
the
extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(I)
after
any
Event of Default (provided that such Event of Default is not by or with
respect to the Institutional Trustee) the taking of any action incidental to
the
foregoing as the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Declaration and
protect and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder);
and
(J)
to
take
all action that may be necessary for the preservation and the continuation
of
the Trust’s valid existence, rights, franchises and privileges as a statutory
trust under the laws of the State of Delaware.
(iii)
The
Institutional Trustee shall have the power and authority to act on behalf of
the
Trust with respect to any of the duties, liabilities, powers or the authority
of
the Administrators set forth in Section 2.6(a)(i)(D), (E) and (F) herein
but shall not have a duty to do any such act unless specifically requested
to do
so in writing by the Sponsor, and shall then be fully protected in acting
pursuant to such written request; and in the event of a conflict between the
action of the Administrators and the action of the Institutional Trustee, the
action of the Institutional Trustee shall prevail.
(b)
So
long
as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may cause
the
Trust to (i) acquire any investments or engage in any activities not
authorized by this Declaration, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property
or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected (x) to cause the
Trust to fail or cease to qualify as a “grantor trust” for United States federal
income tax purposes or (y) to require the trust to register as an Investment
Company under the Investment Company Act, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action
that would result in the placement of a lien on any of the Trust
Property. The Institutional Trustee shall, at the sole cost and
expense of the Trust, defend all claims and demands of all Persons at any time
claiming any lien on any of the Trust Property adverse to the interest of the
Trust or the Holders in their capacity as Holders.
(c)
In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect to,
or
effect on behalf of the Trust, the following (and any actions taken by the
Sponsor in furtherance of the following prior to the date of this Declaration
are hereby ratified and confirmed in all respects):
(i)
the
taking of any action necessary to obtain an exemption from the Securities
Act;
(ii)
the
determination of the States in which to take appropriate action to qualify
or
register for sale all or part of the Capital Securities and the determination
of
any and all such acts, other than actions which must be taken by or on behalf
of
the Trust, and the advice to the Administrators of actions they must take on
behalf of the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the Trust,
as
the Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such States in connection with the sale of the Capital
Securities;
(iii)
the
negotiation of the terms of, and the execution and delivery of, the Placement
Agreement providing for the sale of the Capital Securities; and
(iv)
the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(d)
Notwithstanding
anything herein to the contrary, the Administrators and the Holders of a
Majority in liquidation amount of the Common Securities are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not (i) be deemed to be an Investment Company required to be
registered under the Investment Company Act, and (ii) fail to be classified
as a “grantor trust” for United States federal income tax
purposes. The Administrators and the Holders of a Majority in
liquidation amount of the Common Securities shall not take any action
inconsistent with the treatment of the Debentures as indebtedness of the
Debenture Issuer for United States federal income tax purposes. In
this connection, the Administrators and the Holders of a Majority in liquidation
amount of the Common Securities are authorized to take any action, not
inconsistent with applicable laws, the Certificate of Trust or this Declaration,
as amended from time to time, that each of the Administrators and the Holders
of
a Majority in liquidation amount of the Common Securities determines in their
discretion to be necessary or desirable for such purposes.
(e)
All
expenses incurred by the Administrators or the Trustees pursuant to this Section
2.6 shall be reimbursed by the Sponsor, and the Trustees and the Administrators
shall have no obligations with respect to such expenses (for purposes of
clarification, this Section 2.6(e) does not contemplate the payment by the
Sponsor of acceptance or annual administration fees owing to the Trustees under
this Declaration or the fees and expenses of the Trustees’ counsel in connection
with the closing of the transactions contemplated by this
Declaration).
(f)
The
assets of the Trust shall consist of the Trust Property.
(g)
Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by the
Institutional Trustee and the Administrators for the benefit of the Trust in
accordance with this Declaration.
(h)
If
the
Institutional Trustee or any Holder has instituted any proceeding to enforce
any
right or remedy under this Declaration and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the
Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section
2.7. Prohibition
of Actions by the Trust and the Institutional Trustee.
(a)
The
Trust
shall not, and the Institutional Trustee shall cause the Trust not to, engage
in
any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Institutional
Trustee shall cause the Trust not to:
(i)
invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the terms
of this Declaration and of the Securities;
(ii)
acquire
any assets other than as expressly provided herein;
(iii)
possess
Trust Property for other than a Trust purpose;
(iv)
make
any
loans or incur any indebtedness other than loans represented by the
Debentures;
(v)
possess
any power or otherwise act in such a way as to vary the Trust assets or the
terms of the Securities in any way whatsoever other than as expressly provided
herein;
(vi)
issue
any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Securities;
(vii)
carry
on
any “trade or business” as that phrase is used in the Code; or
(viii)
other
than as provided in this Declaration (including Annex I), (A) direct
the time, method and place of exercising any trust or power conferred upon
the
Debenture Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all the Debentures shall
be due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall be
required unless the Trust shall have received a written opinion of counsel
to
the effect that such modification will not cause the Trust to cease to be
classified as a “grantor trust” for United States federal income tax
purposes.
Section
2.8. Powers
and Duties of the Institutional Trustee.
(a)
The
legal
title to the Debentures shall be owned by and held of record in the name of
the
Institutional Trustee in trust for the benefit of the Trust and the Holders
of
the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section
4.5. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Debentures have been executed
and delivered.
(b)
The
Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators or to the Delaware Trustee.
(c)
The
Institutional Trustee shall:
(i)
establish
and maintain a segregated non-interest bearing trust account (the “Property
Account”) in the name of and under the exclusive control of the
Institutional Trustee, and maintained in the Institutional Trustee’s trust
department, on behalf of the Holders of the Securities and, upon the receipt
of
payments of funds made in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Property Account and make payments, or
cause the Paying Agent to make payments, to the Holders of the Capital
Securities and Holders of the Common Securities from the Property Account in
accordance with Section 5.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this
Declaration;
(ii)
engage
in
such ministerial activities as shall be necessary or appropriate to effect
the
redemption of the Capital Securities and the Common Securities to the extent
the
Debentures are redeemed or mature; and
(iii)
upon
written notice of distribution issued by the Administrators in accordance with
the terms of the Securities, engage in such ministerial activities as shall
be
necessary or appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain circumstances pursuant to the
terms
of the Securities.
(d)
The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands
of
or against, the Trust which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional Trustee has actual
knowledge or arises out of the Institutional Trustee’s duties and obligations
under this Declaration; provided, however, that if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable (or in the case
of
redemption, on the redemption date), then a Holder of the Capital Securities
may
directly institute a proceeding for enforcement of payment to such Holder of
the
principal of or interest on the Debentures having a principal amount equal
to
the aggregate liquidation amount of the Capital Securities of such Holder (a
“Direct Action”) on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the
Holders of the Common Securities will be subrogated to the rights of such Holder
of the Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of the Capital Securities in such Direct Action;
provided, however, that no Holder of the Common Securities may
exercise such right of subrogation so long as an Event of Default with respect
to the Capital Securities has occurred and is continuing.
(e)
The
Institutional Trustee shall continue to serve as a Trustee until
either:
(i)
the
Trust
has been completely liquidated and the proceeds of the liquidation distributed
to the Holders of the Securities pursuant to the terms of the Securities and
this Declaration; or
(ii)
a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.5.
(f)
The
Institutional Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a Holder of the Debentures under the Indenture and,
if
an Event of Default occurs and is continuing, the Institutional Trustee may,
for
the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
The
Institutional Trustee must exercise the powers set forth in this Section 2.8
in
a manner that is consistent with the purposes and functions of the Trust set
out
in Section 2.3, and the Institutional Trustee shall not take any action that
is
inconsistent with the purposes and functions of the Trust set out in Section
2.3.
Section
2.9. Certain
Duties and Responsibilities of the Trustees and
Administrators.
(a)
The
Institutional Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 6.7), the
Institutional Trustee shall exercise such of the rights and powers vested in
it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of his or her own affairs.
(b)
The
duties and responsibilities of the Trustees and the Administrators shall be
as
provided by this Declaration. Notwithstanding the foregoing, no
provision of this Declaration shall require any Trustee or Administrator to
expend or risk their own funds or otherwise incur any financial liability in
the
performance of any of their duties hereunder, or in the exercise of any of
their
rights or powers if it shall have reasonable grounds to believe that repayment
of such funds or adequate protection against such risk of liability is not
reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Declaration relating to the conduct or
affecting the liability of or affording protection to the Trustees or
Administrators shall be subject to the provisions of this
Article. Nothing in this Declaration shall be construed to relieve an
Administrator or a Trustee from liability for its own negligent act, its own
negligent failure to act, or its own willful misconduct. To the
extent that, at law or in equity, a Trustee or an Administrator has duties
and
liabilities relating to the Trust or to the Holders, such Trustee or such
Administrator shall not be liable to the Trust or to any Holder for such
Trustee’s or such Administrator’s good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that
they restrict the duties and liabilities of the Administrators or the Trustee
otherwise existing at law or in equity, are agreed by the Sponsor and the
Holders to replace such other duties and liabilities of the Administrators
or
the Trustees.
(c)
All
payments made by the Institutional Trustee or a Paying Agent in respect of
the
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Institutional Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Security, agrees that it will look solely to
the
revenue and proceeds from the Trust Property to the extent legally available
for
distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable
in
respect of any Security or for any other liability in respect of any
Security. This Section 2.9(c) does not limit the liability of the
Trustees expressly set forth elsewhere in this Declaration.
(d)
The
Institutional Trustee shall not be liable for its own acts or omissions
hereunder except as a result of its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
the
Institutional Trustee shall not be liable for any error of judgment made in
good
faith by an Authorized Officer of the Institutional Trustee, unless it shall
be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(ii)
the
Institutional Trustee shall not be liable with respect to any action taken
or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of not less than a Majority in liquidation amount of the Capital
Securities or the Common Securities, as applicable, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iii)
the
Institutional Trustee’s sole duty with respect to the custody, safekeeping and
physical preservation of the Debentures and the Property Account shall be to
deal with such property in a similar manner as the Institutional Trustee deals
with similar property for its fiduciary accounts generally, subject to the
protections and limitations on liability afforded to the Institutional Trustee
under this Declaration;
(iv)
the
Institutional Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree in writing with the Sponsor; and money
held by the Institutional Trustee need not be segregated from other funds held
by it except in relation to the Property Account maintained by the Institutional
Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
required by law; and
(v)
the
Institutional Trustee shall not be responsible for monitoring the compliance
by
the Administrators or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default
or
misconduct of the Administrators or the Sponsor.
Section
2.10. Certain
Rights of Institutional Trustee.
Subject
to the provisions of Section 2.9:
(a)
the
Institutional Trustee may conclusively rely and shall fully be protected in
acting or refraining from acting in good faith upon any resolution, opinion
of
counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by
the
proper party or parties;
(b)
if
(i) in performing its duties under this Declaration, the Institutional
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein, or (iii) the Institutional Trustee is unsure
of the application of any provision of this Declaration, then, except as to
any
matter as to which the Holders of Capital Securities are entitled to vote under
the terms of this Declaration, the Institutional Trustee may deliver a notice
to
the Sponsor requesting the Sponsor’s written instructions as to the course of
action to be taken and the Institutional Trustee shall take such action, or
refrain from taking such action, as the Institutional Trustee shall be
instructed in writing, in which event the Institutional Trustee shall have
no
liability except for its own negligence or willful misconduct;
(c)
any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers’
Certificate;
(d)
whenever
in the administration of this Declaration, the Institutional Trustee shall
deem
it desirable that a matter be proved or established before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may request and conclusively
rely upon an Officers’ Certificate as to factual matters which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the
Administrators;
(e)
the
Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f)
the
Institutional Trustee may consult with counsel of its selection (which counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Institutional Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(g)
the
Institutional Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Declaration at the request or direction of any
of
the Holders pursuant to this Declaration, unless such Holders shall have offered
to the Institutional Trustee security or indemnity reasonably satisfactory
to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided, that nothing
contained in this Section 2.10(g) shall be taken to relieve the Institutional
Trustee, subject to Section 2.9(b), upon the occurrence of an Event of Default
(that has not been cured or waived pursuant to Section 6.7), to exercise
such of the rights and powers vested in it by this Declaration, and use the
same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own
affairs;
(h)
the
Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Institutional
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i)
the
Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
(j)
whenever
in the administration of this Declaration the Institutional Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder the Institutional Trustee
(i) may request instructions from the Holders of the Capital Securities
which instructions may only be given by the Holders of the same proportion
in
liquidation amount of the Capital Securities as would be entitled to direct
the
Institutional Trustee under the terms of the Capital Securities in respect
of
such remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and
(iii) shall be fully protected in acting in accordance with such
instructions;
(k)
except
as
otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary
under
the provisions of this Declaration;
(l)
when
the
Institutional Trustee incurs expenses or renders services in connection with
a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel)
and the compensation for such services are intended to constitute expenses
of
administration under any bankruptcy law or law relating to creditors rights
generally;
(m)
the
Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee obtains actual
knowledge of such event or the Institutional Trustee receives written notice
of
such event from any Holder, the Sponsor or the Debenture Trustee;
(n)
any
action taken by the Institutional Trustee or its agents hereunder shall bind
the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any of
the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee’s or its agent’s taking such action;
and
(o)
no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Institutional Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Institutional Trustee shall be construed to be a duty.
Section
2.11. Delaware
Trustee.
Notwithstanding
any other provision of this Declaration other than Section 4.1, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of any of the Trustees
or
the Administrators described in this Declaration (except as may be required
under the Statutory Trust Act). Except as set forth in Section 4.1,
the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of § 3807 of the Statutory Trust Act.
Section
2.12. Execution
of Documents.
Unless
otherwise determined in writing by the Institutional Trustee, and except as
otherwise required by the Statutory Trust Act, the Institutional Trustee, or
any
one or more of the Administrators, as the case may be, is authorized to execute
on behalf of the Trust any documents that the Trustees or the Administrators,
as
the case may be, have the power and authority to execute pursuant to Section
2.6.
Section
2.13. Not
Responsible for Recitals or Issuance of
Securities.
The
recitals contained in this Declaration and the Securities shall be taken as
the
statements of the Sponsor, and the Trustees do not assume any responsibility
for
their correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration, the Debentures or the Securities.
Section
2.14. Duration
of Trust.
The
Trust, unless earlier dissolved pursuant to the provisions of Article VII
hereof, shall be in existence for 35 years from the Closing Date.
Section
2.15. Mergers.
(a)
The
Trust
may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other body, except as described in Section 2.15(b) and
(c)
and except in connection with the liquidation of the Trust and the distribution
of the Debentures to Holders of Securities pursuant to Section 7.1(a)(iv) of
the
Declaration or Section 4 of Annex I.
(b)
The
Trust
may, with the consent of the Institutional Trustee and without the consent
of
the Holders of the Capital Securities, consolidate, amalgamate, merge with
or
into, or be replaced by a trust organized as such under the laws of any state;
provided that:
(i)
if
the
Trust is not the surviving entity, such successor entity (the “Successor
Entity”) either:
(A)
expressly
assumes all of the obligations of the Trust under the Securities;
or
(B)
substitutes
for the Securities other securities having substantially the same terms as
the
Securities (the “Successor Securities”) so that the Successor Securities
rank the same as the Securities rank with respect to Distributions and payments
upon Liquidation, redemption and otherwise;
(ii)
the
Sponsor expressly appoints a trustee of the Successor Entity that possesses
substantially the same powers and duties as the Institutional Trustee as the
Holder of the Debentures;
(iii)
such
merger, consolidation, amalgamation or replacement does not adversely affect
the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect;
(iv)
the
Institutional Trustee receives written confirmation from Moody’s Investor
Services, Inc. and any other nationally recognized statistical rating
organization that rates securities issued by the initial purchaser of the
Capital Securities that it will not reduce or withdraw the rating of any such
securities because of such merger, conversion, consolidation, amalgamation
or
replacement;
(v)
such
Successor Entity has a purpose substantially identical to that of the
Trust;
(vi)
prior
to
such merger, consolidation, amalgamation or replacement, the Trust has received
an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A)
such
merger, consolidation, amalgamation or replacement does not adversely affect
the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect;
(B)
following
such merger, consolidation, amalgamation or replacement, neither the Trust
nor
the Successor Entity will be required to register as an Investment Company;
and
(C)
following
such merger, consolidation, amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a “grantor trust” for United
States federal income tax purposes;
(vii)
the
Sponsor guarantees the obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Guarantee;
(viii)
the
Sponsor owns 100% of the common securities of any Successor Entity;
and
(ix)
prior
to
such merger, consolidation, amalgamation or replacement, the Institutional
Trustee shall have received an Officers’ Certificate of the Administrators and
an opinion of counsel, each to the effect that all conditions precedent under
this Section 2.15(b) to such transaction have been satisfied.
(c)
Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders of
100%
in aggregate liquidation amount of the Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE
III
SPONSOR
Section
3.1. Sponsor’s
Purchase of Common Securities.
On
the
Closing Date, the Sponsor will purchase all of the Common Securities issued
by
the Trust in an amount at least equal to 3% of the capital of the Trust, at
the
same time as the Capital Securities are sold.
Section
3.2. Responsibilities
of the Sponsor.
In
connection with the issue and sale of the Capital Securities, the Sponsor shall
have the exclusive right and responsibility to engage in, or direct the
Administrators to engage in, the following activities:
(a)
to
determine the States in which to take appropriate action to qualify the Trust
or
to qualify or register for sale all or part of the Capital Securities and to
do
any and all such acts, other than actions which must be taken by the Trust,
and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States, to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which it was
created; and
(b)
to
negotiate the terms of and/or execute on behalf of the Trust, the Placement
Agreement and other related agreements providing for the sale of the Capital
Securities.
Section
3.3. Expenses.
In
connection with the offering, sale and issuance of the Debentures to the Trust
and in connection with the sale of the Securities by the Trust, the Sponsor,
in
its capacity as Debenture Issuer, shall:
(a) pay
all reasonable costs and expenses owing to the Debenture Trustee pursuant to
Section 6.6 of the Indenture;
(b) be
responsible for and shall pay all debts and obligations (other than with respect
to the Securities) and all costs and expenses of the Trust, the offering, sale
and issuance of the Securities (including fees to the placement agents in
connection therewith), the costs and expenses (including reasonable counsel
fees
and expenses) of the Institutional Trustee and the Administrators, the costs
and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, Transfer Agents, duplicating, travel
and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Institutional Trustee of the rights of the Holders
(for purposes of clarification, this Section 3.3(b) does not contemplate the
payment by the Sponsor of acceptance or annual administration fees owing to
the
Trustees pursuant to the services to be provided by the Trustees under this
Declaration or the fees and expenses of the Trustees’ counsel in connection with
the closing of the transactions contemplated by this Declaration);
and
(c)
pay
any
and all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to
such taxes of the Trust.
The
Sponsor’s obligations under this Section 3.3 shall be for the benefit of,
and shall be enforceable by, any Person to whom such debts, obligations, costs,
expenses and taxes are owed (a “Creditor”) whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the
Sponsor’s obligations under this Section 3.3 directly against the Sponsor
and the Sponsor irrevocably waives any right or remedy to require that any
such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to
the
provisions of this Section 3.3.
Section
3.4. Right
to Proceed.
The
Sponsor acknowledges the rights of Holders to institute a Direct Action as
set
forth in Section 2.8(d) hereto.
ARTICLE
IV
INSTITUTIONAL
TRUSTEE AND ADMINISTRATORS
Section
4.1. Number
of Trustees.
The
number of Trustees shall initially be two, and;
(a) at
any
time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
(b) after
the
issuance of any Securities, the number of Trustees may be increased or decreased
by vote of the Holder of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holder of the Common
Securities; provided, however, that there shall be a Delaware
Trustee if required by Section 4.2; and there shall always be one Trustee who
shall be the Institutional Trustee, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements, in which case Section 2.11
shall have no application to such entity in its capacity as Institutional
Trustee.
Section
4.2. Delaware
Trustee; Eligibility.
(a)
If
required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall
be:
(i)
a
natural
person at least 21 years of age who is a resident of the State of Delaware;
or
(ii)
if
not a
natural person, an entity which is organized under the laws of the United States
or any state thereof or the District of Columbia, has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, including § 3807 of the Statutory Trust Act.
(b)
The
initial Delaware Trustee shall be Wilmington Trust Company.
Section
4.3. Institutional
Trustee; Eligibility.
(a)
There
shall at all times be one Trustee which shall:
(i)
not
be an
Affiliate of the Sponsor;
(ii)
not
offer
or provide credit or credit enhancement to the Trust; and
(iii)
be
a
banking corporation or trust company organized and doing business under the
laws
of the United States of America or any state thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000.00), and subject to supervision or examination by Federal, state,
or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for the
purposes of this Section 4.3(a)(iii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b)
If
at any
time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner
and with the effect set forth in Section 4.5.
(c)
If
the
Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act of 1939, as amended, the
Institutional Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to this
Declaration.
(d)
The
initial Institutional Trustee shall be Wilmington Trust Company.
Section
4.4. Administrators.
Each
Administrator shall be a U.S. Person, 21 years of age or older and authorized
to
bind the Sponsor. The initial Administrators shall be Richard C.
White, Alan A. Wing and Stephen P. Marsh. There shall at
all times be at least one Administrator. Except where a requirement
for action by a specific number of Administrators is expressly set forth in
this
Declaration and except with respect to any action the taking of which is the
subject of a meeting of the Administrators, any action required or permitted
to
be taken by the Administrators may be taken by, and any power of the
Administrators may be exercised by, or with the consent of, any one such
Administrator.
Section
4.5. Appointment,
Removal and Resignation of Trustees and
Administrators.
(a)
No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 4.5.
(b)
Subject
to Section 4.5(a), a Relevant Trustee may resign at any time by giving written
notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee. Upon the resignation of the Institutional Trustee,
the Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges
to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense and
charges (the “Successor Institutional Trustee”). If the instrument of
acceptance by the successor Relevant Trustee required by this Section 4.5 shall
not have been delivered to the Relevant Trustee within 60 days after the giving
of such notice of resignation or delivery of the instrument of removal, the
Relevant Trustee may petition, at the expense of the Trust, any federal, state
or District of Columbia court of competent jurisdiction for the appointment
of a
successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Relevant
Trustee. The Institutional Trustee shall have no liability for the selection
of
such successor pursuant to this Section 4.5.
(c)
Unless
an
Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an act of the Holders of a Majority in liquidation amount
of the Common Securities. If any Trustee shall be so removed, the
Holders of the Common Securities, by act of the Holders of a Majority in
liquidation amount of the Common Securities delivered to the Relevant Trustee,
shall promptly appoint a successor Relevant Trustee, and such successor Trustee
shall comply with the applicable requirements of this Section 4.5. If
an Event of Default shall have occurred and be continuing, the Institutional
Trustee or the Delaware Trustee, or both of them, may be removed by the act
of
the Holders of a Majority in liquidation amount of the Capital Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf
of
the Trust). If any Trustee shall be so removed, the Holders of
Capital Securities, by act of the Holders of a Majority in liquidation amount
of
the Capital Securities then outstanding delivered to the Relevant Trustee,
shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of this Section
4.5. If no successor Relevant Trustee shall have been so appointed by
the Holders of a Majority in liquidation amount of the Capital Securities and
accepted appointment in the manner required by this Section 4.5 within 30 days
after delivery of an instrument of removal, the Relevant Trustee or any Holder
who has been a Holder of the Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any federal, state or
District of Columbia court of competent jurisdiction for the appointment of
a
successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trustee or Trustees.
(d)
The
Institutional Trustee shall give notice of each resignation and each removal
of
a Trustee and each appointment of a successor Trustee to all Holders and to
the
Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Institutional
Trustee.
(e)
Notwithstanding
the foregoing or any other provision of this Declaration, in the event a
Delaware Trustee who is a natural person dies or is adjudged by a court to
have
become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 4.5 (with the successor being a Person
who satisfies the eligibility requirement for a Delaware Trustee set forth
in
this Declaration) (the “Successor Delaware Trustee”).
(f)
In
case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to,
and to vest in, each successor Relevant Trustee all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Securities
and
the Trust and (b) shall add to or change any of the provisions of this
Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee;
but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by
such
retiring Relevant Trustee hereunder with respect to the Securities and the
Trust
subject to the payment of all unpaid fees, expenses and indemnities of such
retiring Relevant Trustee.
(g)
No
Institutional Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(h)
The
Holders of the Capital Securities will have no right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in
the
Holders of the Common Securities.
(i)
Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware identifying the name and
principal place of business of such Delaware Trustee in the State of
Delaware.
Section
4.6. Vacancies
Among Trustees.
If
a
Trustee ceases to hold office for any reason and the number of Trustees is
not
reduced pursuant to Section 4.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Trustees or, if there are more
than two, a majority of the Trustees, shall be conclusive evidence of the
existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 4.5.
Section
4.7. Effect
of Vacancies.
The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this
Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled by the appointment of a Trustee in
accordance with Section 4.5, the Institutional Trustee shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
Section
4.8. Meetings
of the Trustees and the Administrators.
Meetings
of the Administrators shall be held from time to time upon the call of an
Administrator. Regular meetings of the Administrators may be held in
person in the United States or by telephone, at a place (if applicable) and
time
fixed by resolution of the Administrators. Notice of any in-person
meetings of the Trustees with the Administrators or meetings of the
Administrators shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than
48 hours before such meeting. Notice of any telephonic meetings
of the Trustees with the Administrators or meetings of the Administrators or
any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a
Trustee or an Administrator, as the case may be, at a meeting shall constitute
a
waiver of notice of such meeting except where the Trustee or an Administrator,
as the case may be, attends a meeting for the express purpose of objecting
to
the transaction of any activity on the grounds that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Trustees or the Administrators, as the case
may
be, may be taken at a meeting by vote of a majority of the Trustees or the
Administrators present (whether in person or by telephone) and eligible to
vote
with respect to such matter, provided that a Quorum is present, or without
a
meeting by the unanimous written consent of the Trustees or the
Administrators. Meetings of the Trustees and the Administrators
together shall be held from time to time upon the call of any Trustee or an
Administrator.
Section
4.9. Delegation
of Power.
(a)
Any
Administrator may, by power of attorney consistent with applicable law, delegate
to any other natural person over the age of 21 that is a U.S. Person his or
her
power for the purpose of executing any documents contemplated in Section 2.6;
and
(b)
the
Administrators shall have power to delegate from time to time to such of their
number the doing of such things and the execution of such instruments either
in
the name of the Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as
set
forth herein.
Section
4.10. Conversion,
Consolidation or Succession to Business.
Any
Person into which the Institutional Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Institutional Trustee or the Delaware Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Institutional Trustee or the Delaware Trustee shall be the successor of the
Institutional Trustee or the Delaware Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article and,
provided, further, that such Person shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware as
contemplated in Section 4.5(i).
ARTICLE
V
DISTRIBUTIONS
Section
5.1. Distributions.
Holders
shall receive Distributions in accordance with the applicable terms of the
relevant Holder’s Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the
Debenture Issuer makes a payment of Interest or any principal on the Debentures
held by the Institutional Trustee, the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a “Distribution”) of such amounts to Holders.
ARTICLE
VI
ISSUANCE
OF SECURITIES
Section
6.1. General
Provisions Regarding Securities.
(a)
The
Administrators shall, on behalf of the Trust, issue one series of capital
securities substantially in the form of Exhibit A-1 representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I and one series of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I. The Trust shall issue no securities or other
interests in the assets of the Trust other than the Capital Securities and
the
Common Securities. The Capital Securities rank pari passu
to, and payment thereon shall be made Pro Rata with, the Common Securities
except that, where an Event of Default has occurred and is continuing, the
rights of Holders of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Capital Securities
as set forth in Annex I.
(b)
The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature of
any
Administrator. In case any Administrator of the Trust who shall have
signed any of the Securities shall cease to be such Administrator before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Administrator, and any Certificate may be signed
on
behalf of the Trust by such persons who, at the actual date of execution of
such
Security, shall be an Administrator of the Trust, although at the date of the
execution and delivery of the Declaration any such person was not such an
Administrator. A Capital Security shall not be valid until
authenticated by the facsimile or manual signature of an Authorized Officer
of
the Institutional Trustee. Such signature shall be conclusive
evidence that the Capital Security has been authenticated under this
Declaration. Upon written order of the Trust signed by one
Administrator, the Institutional Trustee shall authenticate the Capital
Securities for original issue. The Institutional Trustee may appoint
an authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Capital Securities. A Common Security need not be so
authenticated.
(c)
The
consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute
a
loan to the Trust.
(d)
Upon
issuance of the Securities as provided in this Declaration, the Securities
so
issued shall be deemed to be validly issued, fully paid and, except as provided
in Section 9.1(b) with respect to the Common Securities,
non-assessable.
(e)
Every
Person, by virtue of having become a Holder in accordance with the terms of
this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the Guarantee.
Section
6.2. Paying
Agent, Transfer Agent and Registrar.
The
Trust
shall maintain in Wilmington, Delaware, an office or agency where the Capital
Securities may be presented for payment (“Paying Agent”), and an office
or agency where Securities may be presented for registration of transfer or
exchange (the “Transfer Agent”). The Trust shall keep or cause
to be kept at such office or agency a register for the purpose of registering
Securities, transfers and exchanges of Securities, such register to be held
by a
registrar (the “Registrar”). The Administrators may appoint
the Paying Agent, the Registrar and the Transfer Agent and may appoint one
or
more additional Paying Agents or one or more co-Registrars, or one or more
co-Transfer Agents in such other locations as it shall determine. The
term “Paying Agent” includes any additional paying agent, the term
“Registrar” includes any additional registrar or co-Registrar and the
term “Transfer Agent” includes any additional transfer
agent. The Administrators may change any Paying Agent, Transfer Agent
or Registrar at any time without prior notice to any Holder. The
Administrators shall notify the Institutional Trustee of the name and address
of
any Paying Agent, Transfer Agent and Registrar not a party to this
Declaration. The Administrators hereby initially appoint the
Institutional Trustee to act as Paying Agent, Transfer Agent and Registrar
for
the Capital Securities and the Common Securities. The Institutional
Trustee or any of its Affiliates in the United States may act as Paying Agent,
Transfer Agent or Registrar.
Section
6.3. Form
and Dating.
The
Capital Securities and the Institutional Trustee’s certificate of authentication
thereon shall be substantially in the form of Exhibit A-1, and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which
is hereby incorporated in and expressly made a part of this
Declaration. Certificates may be typed, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to
the Administrators, as conclusively evidenced by their execution
thereof. The Securities may have letters, numbers, notations or other
marks of identification or designation and such legends or endorsements required
by law, stock exchange rule, agreements to which the Trust is subject if any,
or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Sponsor). The Trust at the direction of the Sponsor
shall furnish any such legend not contained in Exhibit A-1 to the
Institutional Trustee in writing. Each Capital Security shall be
dated on or before the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration
and to the extent applicable, the Institutional Trustee, the Delaware Trustee,
the Administrators and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby. Capital Securities will be issued only in blocks having a
stated liquidation amount of not less than $100,000.00 and any multiple of
$1,000.00 in excess thereof.
The
Capital Securities are being offered and sold by the Trust pursuant to the
Placement Agreement in definitive, registered form without coupons and with
the
Restricted Securities Legend.
Section
6.4. Mutilated,
Destroyed, Lost or Stolen Certificates.
If:
(a)
any
mutilated Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss
or
theft of any Certificate; and
(b)
there
shall be delivered to the Registrar, the Administrators and the Institutional
Trustee such security or indemnity as may be required by them to keep each
of
them harmless;
then,
in
the absence of notice that such Certificate shall have been acquired by a
protected purchaser, an Administrator on behalf of the Trust shall execute
(and
in the case of a Capital Security Certificate, the Institutional Trustee shall
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate
under this Section 6.4, the Registrar or the Administrators may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section
6.5. Temporary
Securities.
Until
definitive Securities are ready for delivery, the Administrators may prepare
and, in the case of the Capital Securities, the Institutional Trustee shall
authenticate, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations
that
the Administrators consider appropriate for temporary
Securities. Without unreasonable delay, the Administrators shall
prepare and, in the case of the Capital Securities, the Institutional Trustee
shall authenticate, definitive Securities in exchange for temporary
Securities.
Section
6.6. Cancellation.
The
Administrators at any time may deliver Securities to the Institutional Trustee
for cancellation. The Registrar shall forward to the Institutional
Trustee any Securities surrendered to it for registration of transfer,
redemption or payment. The Institutional Trustee shall promptly
cancel all Securities surrendered for registration of transfer, payment,
replacement or cancellation and shall dispose of such canceled Securities as
the
Administrators direct. The Administrators may not issue new
Securities to replace Securities that have been paid or that have been delivered
to the Institutional Trustee for cancellation.
Section
6.7. Rights
of Holders; Waivers of Past Defaults.
(a)
The
legal
title to the Trust Property is vested exclusively in the Institutional Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Securities and they shall have
no
right to call for any partition or division of property, profits or rights
of
the Trust except as described below. The Securities shall be personal
property giving only the rights specifically set forth therein and in this
Declaration. The Securities shall have no preemptive or similar
rights.
(b)
For
so
long as any Capital Securities remain outstanding, if upon an Acceleration
Event
of Default, the Debenture Trustee fails or the holders of not less than 25%
in
principal amount of the outstanding Debentures fail to declare the principal
of
all of the Debentures to be immediately due and payable, the Holders of a
Majority in liquidation amount of the Capital Securities then outstanding shall
have the right to make such declaration by a notice in writing to the
Institutional Trustee, the Sponsor and the Debenture Trustee.
At
any
time after a declaration of acceleration with respect to the Debentures has
been
made and before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as provided in the Indenture, if the
Institutional Trustee, subject to the provisions hereof, fails to annul any
such
declaration and waive such default, the Holders of a Majority in liquidation
amount of the Capital Securities, by written notice to the Institutional
Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such
declaration and its consequences if:
(i)
the
Debenture Issuer has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A)
all
overdue installments of interest on all of the Debentures,
(B)
any
accrued Additional Interest on all of the Debentures,
(C)
the
principal of (and premium, if any, on) any Debentures that have become due
otherwise than by such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D)
all
sums
paid or advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Debenture Trustee
and
the Institutional Trustee, their agents and counsel; and
(ii)
all
Events of Default with respect to the Debentures, other than the non-payment
of
the principal of the Debentures that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.7 of the
Indenture.
The
Holders of at least a Majority in liquidation amount of the Capital Securities
may, on behalf of the Holders of all the Capital Securities, waive any past
default under the Indenture or any Indenture Event of Default, except a default
or Indenture Event of Default in the payment of principal or interest on the
Debentures (unless such default or Indenture Event of Default has been cured
and
a sum sufficient to pay all matured installments of interest and principal
due
otherwise than by acceleration has been deposited with the Debenture Trustee)
or
a default under the Indenture or an Indenture Event of Default in respect of
a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon
receipt by the Institutional Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the
Capital Securities, a record date shall be established for determining Holders
of outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Institutional Trustee
receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is
90 days after such record date, such notice of declaration of acceleration,
or rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof,
as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section
6.7.
(c)
Except
as
otherwise provided in paragraphs (a) and (b) of this Section 6.7, the
Holders of at least a Majority in liquidation amount of the Capital Securities
may, on behalf of the Holders of all the Capital Securities, waive any past
default or Event of Default and its consequences. Upon such waiver,
any such default or Event of Default shall cease to exist, and any default
or
Event of Default arising therefrom shall be deemed to have been cured, for
every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent
thereon.
ARTICLE
VII
DISSOLUTION
AND TERMINATION OF TRUST
Section
7.1. Dissolution
and Termination of Trust.
(a)
The
Trust
shall dissolve on the first to occur of:
(i)
unless
earlier dissolved, on December 15, 2042, the expiration of the term of the
Trust;
(ii)
upon
a
Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
(iii)
upon
the
filing of a certificate of dissolution or its equivalent with respect to the
Sponsor (other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, this Declaration or the Guarantee,
as the case may be) or upon the revocation of the charter of the Sponsor and
the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iv)
upon
the
distribution of the Debentures to the Holders of the Securities, upon exercise
of the right of the Holder of all of the outstanding Common Securities to
dissolve the Trust as provided in Annex I hereto;
(v)
upon
the
entry of a decree of judicial dissolution of the Holder of the Common
Securities, the Sponsor, the Trust or the Debenture Issuer;
(vi)
when
all
of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or
(vii)
before
the issuance of any Securities, with the consent of all of the Trustees and
the
Sponsor.
(b)
As
soon
as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust as
required by applicable law, including of the Statutory Trust Act, and subject
to
the terms set forth in Annex I, the Institutional Trustee shall terminate
the Trust by filing a certificate of cancellation with the Secretary of State
of
the State of Delaware.
(c)
The
provisions of Section 2.9 and Article IX shall survive the termination
of the Trust.
ARTICLE
VIII
TRANSFER
OF INTERESTS
Section
8.1. General.
(a)
Subject
to Section 8.1(c), where Capital Securities are presented to the Registrar
or a
co-registrar with a request to register a transfer or to exchange them for
an
equal number of Capital Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfer
and exchanges, the Trust shall issue and the Institutional Trustee shall
authenticate Capital Securities at the Registrar’s request.
(b)
Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and for so long as
the
Securities remain outstanding, and to the fullest extent permitted by applicable
law, the Sponsor shall maintain 100% ownership of the Common Securities;
provided, however, that any permitted successor of the Sponsor, in
its capacity as Debenture Issuer, under the Indenture that is a U.S. Person
may
succeed to the Sponsor’s ownership of the Common Securities.
(c)
Capital
Securities may only be transferred, in whole or in part, in accordance with
the
terms and conditions set forth in this Declaration and in the terms of the
Securities. To the fullest extent permitted by applicable law, any
transfer or purported transfer of any Security not made in accordance with
this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such transferee shall be deemed not to be the holder of
such
Capital Securities for any purpose, including but not limited to the receipt
of
Distributions on such Capital Securities, and such transferee shall be deemed
to
have no interest whatsoever in such Capital Securities.
(d)
The
Registrar shall provide for the registration of Securities and of transfers
of
Securities, which will be effected without charge but only upon payment (with
such indemnity as the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Securities, the Registrar shall
cause one or more new Securities of the same tenor to be issued in the name
of
the designated transferee or transferees. Every Security surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder
or
such Holder’s attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Institutional
Trustee pursuant to Section 6.6. A transferee of a Security shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon
the receipt by such transferee of a Security. By acceptance of a
Security, each transferee shall be deemed to have agreed to be bound by this
Declaration.
(e)
The
Trust
shall not be required (i) to issue, register the transfer of, or exchange
any Securities during a period beginning at the opening of business
fifteen days before the day of any selection of Securities for redemption
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section
8.2. Transfer
Procedures and Restrictions.
(a)
The
Capital Securities shall bear the Restricted Securities Legend, which shall
not
be removed unless there is delivered to the Trust such satisfactory evidence,
which may include an opinion of counsel satisfactory to the Institutional
Trustee, as may be reasonably required by the Trust, that neither the legend
nor
the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of the Securities
Act. Upon provision of such satisfactory evidence, the Institutional
Trustee, at the written direction of the Trust, shall authenticate and deliver
Capital Securities that do not bear the legend.
(b)
Except
as
permitted by Section 8.2(a), each Capital Security shall bear a legend (the
“Restricted Securities Legend”) in substantially the following form and a
Capital Security shall not be transferred except in compliance with such legend,
unless otherwise determined by the Sponsor, upon the advice of counsel expert
in
securities law, in accordance with applicable law:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR
THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO
A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION
OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE
TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND
HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE
IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES
OF $1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES
IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED
TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
(c)
To
permit
registrations of transfers and exchanges, the Trust shall execute and the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s
request.
(d)
Registrations
of transfers or exchanges will be effected without charge, but only upon payment
(with such indemnity as the Registrar or the Sponsor may require) in respect
of
any tax or other governmental charge that may be imposed in relation to
it.
(e)
All
Capital Securities issued upon any registration of transfer or exchange pursuant
to the terms of this Declaration shall evidence the same security and shall
be
entitled to the same benefits under this Declaration as the Capital Securities
surrendered upon such registration of transfer or exchange.
Section
8.3. Deemed
Security Holders.
The
Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent
or
the Registrar may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar shall have actual or other notice thereof.
ARTICLE
IX
LIMITATION
OF LIABILITY OF
HOLDERS
OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
Section
9.1. Liability.
(a)
Except
as
expressly set forth in this Declaration, the Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i)
personally
liable for the return of any portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; or
(ii)
required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
(b)
The
Holder of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust’s assets.
(c)
Pursuant
to the Statutory Trust Act, the Holders of the Capital Securities shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation
Law
of the State of Delaware.
Section
9.2. Exculpation.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except
that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person’s negligence or willful misconduct
with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
Section
9.3. Fiduciary
Duty.
(a)
To
the
extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Declaration shall not
be
liable to the Trust or to any other Covered Person for its good faith reliance
on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict the duties and liabilities of
an
Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of the Indemnified
Person.
(b)
Whenever
in this Declaration an Indemnified Person is permitted or required to make
a
decision:
(i)
in
its
“discretion” or under a grant of similar authority, the Indemnified Person shall
be entitled to consider such interests and factors as it desires, including
its
own interests, and shall have no duty or obligation to give any consideration
to
any interest of or factors affecting the Trust or any other Person;
or
(ii)
in
its
“good faith” or under another express standard, the Indemnified Person shall act
under such express standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
Section
9.4. Indemnification.
(a)
The
Sponsor shall indemnify, to the full extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) arising out of or in connection with the acceptance or
administration of this Declaration by reason of the fact that he is or was
an
Indemnified Person against expenses (including reasonable attorneys’ fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnified Person did not act in good faith and in a manner which
he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable cause
to
believe that his conduct was unlawful.
(b)
The
Sponsor shall indemnify, to the full extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Trust
to procure a judgment in its favor arising out of or in connection with the
acceptance or administration of this Declaration by reason of the fact that
he
is or was an Indemnified Person against expenses (including reasonable
attorneys’ fees and expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in
good faith and in a manner he reasonably believed to be in or not opposed to
the
best interests of the Trust; provided, however, that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Indemnified Person shall have been adjudged to be liable to the
Trust
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c)
To
the
extent that an Indemnified Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Section 9.4, or in
defense of any claim, issue or matter therein, he shall be indemnified, to
the
full extent permitted by law, against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by him in connection
therewith.
(d)
Any
indemnification of an Administrator under paragraphs (a) and (b) of this
Section 9.4 (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of
the
Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and
(b). Such determination shall be made (i) by the Administrators
by a majority vote of a Quorum consisting of such Administrators who were not
parties to such action, suit or proceeding, (ii) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of disinterested Administrators
so directs, by independent legal counsel in a written opinion, or (iii) by
the Common Security Holder of the Trust.
(e)
To
the
fullest extent permitted by law, expenses (including reasonable attorneys’ fees
and expenses) incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (a) and (b) of this Section 9.4 shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section
9.4. Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made (i) by the
Administrators by a majority vote of a Quorum of disinterested Administrators,
(ii) if such a Quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrators so directs, by independent legal counsel
in a written opinion or (iii) by the Common Security Holder of the Trust,
that, based upon the facts known to the Administrators, counsel or the Common
Security Holder at the time such determination is made, such Indemnified Person
acted in bad faith or in a manner that such Indemnified Person did not believe
to be in the best interests of the Trust, or, with respect to any criminal
proceeding, that such Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance be
made in instances where the Administrators, independent legal counsel or the
Common Security Holder reasonably determine that such Indemnified Person
deliberately breached his duty to the Trust or its Common or Capital Security
Holders.
(f)
The
Trustees, at the sole cost and expense of the Sponsor, retain the right to
representation by counsel of their own choosing in any action, suit or any
other
proceeding for which they are indemnified under paragraphs (a) and (b) of
this Section 9.4, without affecting their right to indemnification hereunder
or
waiving any rights afforded to it under this Declaration or applicable
law.
(g)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other paragraphs of this Section 9.4 shall not be deemed exclusive of any
other rights to which those seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this
Section 9.4 shall be deemed to be provided by a contract between the
Sponsor and each Indemnified Person who serves in such capacity at any time
while this Section 9.4 is in effect. Any repeal or modification of
this Section 9.4 shall not affect any rights or obligations then
existing.
(h)
The
Sponsor or the Trust may purchase and maintain insurance on behalf of any Person
who is or was an Indemnified Person against any liability asserted against
him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 9.4.
(i)
For
purposes of this Section 9.4, references to “the Trust” shall include, in
addition to the resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger, so
that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 9.4 with
respect to the resulting or surviving entity as he would have with respect
to
such constituent entity if its separate existence had continued.
(j)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Section 9.4 shall, unless otherwise provided when authorized or ratified,
(i) continue as to a Person who has ceased to be an Indemnified Person and
shall inure to the benefit of the heirs, executors and administrators of such
a
Person; and (ii) survive the termination or expiration of this Declaration
or the earlier removal or resignation of an Indemnified Person.
Section
9.5. Outside
Businesses.
Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
may engage in or possess an interest in other business ventures of any nature
or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of any Covered Person, the Sponsor, the Delaware
Trustee or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee shall have the right to take for its own account (individually or as
a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and
the Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or its
Affiliates.
Section
9.6. Compensation;
Fee.
The
Sponsor agrees:
(a)
to
pay to
the Trustees from time to time such compensation for all services rendered
by
them hereunder as the parties shall agree from time to time (which compensation
shall not be limited by any provision of law in regard to the compensation
of a
trustee of an express trust); and
(b)
except
as
otherwise expressly provided herein, to reimburse the Trustees upon request
for
all reasonable expenses, disbursements and advances incurred or made by the
Trustees in accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of their respective
agents and counsel), except any such expense, disbursement or advance as may
be
attributable to its negligence, bad faith or willful misconduct.
For
purposes of clarification, this Section 9.6 does not contemplate the
payment by the Sponsor of acceptance or annual administration fees owing to
the
Trustees under this Declaration or the fees and expenses of the Trustees’
counsel in connection with the closing of the transactions contemplated by
this
Declaration.
The
provisions of this Section 9.6 shall survive the dissolution of the Trust and
the termination of this Declaration and the removal or resignation of any
Trustee.
No
Trustee may claim any lien or charge on any property of the Trust as a result
of
any amount due pursuant to this Section 9.6.
ARTICLE
X
ACCOUNTING
Section
10.1. Fiscal
Year.
The
fiscal year (“Fiscal Year”) of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section
10.2. Certain
Accounting Matters.
(a)
At
all
times during the existence of the Trust, the Administrators shall keep, or
cause
to be kept at the principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations section 301.7701-7, full books of account,
records and supporting documents, which shall reflect in reasonable detail
each
transaction of the Trust. The books of account shall be maintained,
at the Sponsor’s expense, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the
records of the Trust shall be examined by and reported upon (either separately
or as part of the Sponsor’s regularly prepared consolidated financial report) as
of the end of each Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Administrators.
(b)
The
Administrators shall cause to be duly prepared and delivered to each of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required
by
the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Administrators
shall endeavor to deliver all such statements within 30 days after the end
of each Fiscal Year of the Trust.
(c)
The
Administrators, at the Sponsor’s expense, shall cause to be duly prepared at the
principal office of the Sponsor in the United States, as ‘United States’ is
defined in Section 7701(a)(9) of the Code (or at the principal office of
the Trust if the Sponsor has no such principal office in the United States),
and
filed an annual United States federal income tax return on a Form 1041 or such
other form required by United States federal income tax law, and any other
annual income tax returns required to be filed by the Administrators on behalf
of the Trust with any state or local taxing authority.
Section
10.3. Banking.
The
Trust
shall maintain in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Institutional Trustee
shall be made directly to the Property Account and no other funds of the Trust
shall be deposited in the Property Account. The sole signatories for
such accounts (including the Property Account) shall be designated by the
Institutional Trustee.
Section
10.4. Withholding.
The
Institutional Trustee or any Paying Agent and the Administrators shall comply
with all withholding requirements under United States federal, state and local
law. The Institutional Trustee or any Paying Agent shall request, and
each Holder shall provide to the Institutional Trustee or any Paying Agent,
such
forms or certificates as are necessary to establish an exemption from
withholding with respect to the Holder, and any representations and forms as
shall reasonably be requested by the Institutional Trustee or any Paying Agent
to assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrators shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Institutional
Trustee or any Paying Agent is required to withhold and pay over any amounts
to
any authority with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claimed
overwithholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Institutional Trustee or any Paying Agent
may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE
XI
AMENDMENTS
AND MEETINGS
Section
11.1. Amendments.
(a)
Except
as
otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument
approved and executed (i) by the Institutional Trustee, or (ii) if the
amendment affects the rights, powers, duties, obligations or immunities of
the
Delaware Trustee, by the Delaware Trustee.
(b)
Notwithstanding
any other provision of this Article XI, an amendment may be made, and any
such purported amendment shall be valid and effective only if:
(i)
the
Institutional Trustee shall have first received
(A)
an
Officers’ Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including
the
terms of the Securities); and
(B)
an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(ii)
the
result of such amendment would not be to
(A)
cause
the
Trust to cease to be classified for purposes of United States federal income
taxation as a grantor trust; or
(B)
cause
the
Trust to be deemed to be an Investment Company required to be registered under
the Investment Company Act.
(c)
Except
as
provided in Section 11.1(d), (e) or (h), no amendment shall be made, and any
such purported amendment shall be void and ineffective, unless the Holders
of a
Majority in liquidation amount of the Capital Securities shall have consented
to
such amendment.
(d)
In
addition to and notwithstanding any other provision in this Declaration, without
the consent of each affected Holder, this Declaration may not be amended to
(i) change the amount or timing of any Distribution on the Securities or
otherwise adversely affect the amount of any Distribution required to be made
in
respect of the Securities as of a specified date or change any conversion or
exchange provisions or (ii) restrict the right of a Holder to institute
suit for the enforcement of any such payment on or after such date.
(e)
Sections 9.1(b)
and 9.1(c) and this Section 11.1 shall not be amended without the consent of
all
of the Holders of the Securities.
(f)
Article III
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities.
(g)
The
rights of the Holders of the Capital Securities under Article IV to appoint
and remove Trustees shall not be amended without the consent of the Holders
of a
Majority in liquidation amount of the Capital Securities.
(h)
This
Declaration may be amended by the Institutional Trustee and the Holders of
a
Majority in liquidation amount of the Common Securities without the consent
of
the Holders of the Capital Securities to:
(i)
cure
any
ambiguity;
(ii)
correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;
(iii)
add
to
the covenants, restrictions or obligations of the Sponsor; or
(iv)
modify,
eliminate or add to any provision of this Declaration to such extent as may
be
necessary to ensure that the Trust will be classified for United States federal
income tax purposes at all times as a grantor trust and will not be required
to
register as an Investment Company (including without limitation to conform
to
any change in Rule 3a-5, Rule 3a-7 or any other applicable rule under
the Investment Company Act or written change in interpretation or application
thereof by any legislative body, court, government agency or regulatory
authority) which amendment does not have a material adverse effect on the
rights, preferences or privileges of the Holders of Securities;
provided,
however, that no such modification, elimination or addition referred to
in clauses (i), (ii), (iii) or (iv) shall adversely affect in any material
respect the powers, preferences or special rights of Holders of Capital
Securities.
Section
11.2. Meetings
of the Holders of Securities; Action by Written
Consent.
(a)
Meetings
of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider
and
act on any matter on which Holders of such class of Securities are entitled
to
act under the terms of this Declaration or the terms of the
Securities. The Administrators shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by
delivering to the Administrators one or more calls in a writing stating that
the
signing Holders of the Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be
called. Any Holders of the Securities calling a meeting shall specify
in writing the Certificates held by the Holders of the Securities exercising
the
right to call a meeting and only those Securities represented by such
Certificates shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been
met.
(b)
Except
to
the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
(i)
notice
of
any such meeting shall be given to all the Holders of the Securities having
a
right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or approval of the
Holders of the Securities is permitted or required under this Declaration,
such
vote, consent or approval may be given at a meeting of the Holders of the
Securities. Any action that may be taken at a meeting of the Holders
of the Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of the Securities owning
not
less than the minimum amount of Securities in liquidation amount that would
be
necessary to authorize or take such action at a meeting at which all Holders
of
the Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall
be given to the Holders of the Securities entitled to vote who have not
consented in writing. The Administrators may specify that any written
ballot submitted to the Holders of the Securities for the purpose of taking
any
action without a meeting shall be returned to the Trust within the time
specified by the Administrators;
(ii)
each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No
proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of the Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the
Holders of the Securities were stockholders of a Delaware corporation; each
meeting of the Holders of the Securities shall be conducted by the
Administrators or by such other Person that the Administrators may designate;
and
(iii)
unless
the Statutory Trust Act, this Declaration, or the terms of the Securities
otherwise provides, the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of the Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record
date,
quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote; provided,
however, that each meeting shall be conducted in the United States
(as
that term is defined in Treasury Regulations section 301.7701-7).
ARTICLE
XII
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE
Section
12.1. Representations
and Warranties of Institutional Trustee.
The
initial Institutional Trustee represents and warrants to the Trust and to the
Sponsor at the date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at the time of
the
Successor Institutional Trustee’s acceptance of its appointment as Institutional
Trustee, that:
(a)
the
Institutional Trustee is a Delaware banking corporation with trust powers,
duly
organized and validly existing under the laws of the State of Delaware with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration;
(b)
the
execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Institutional Trustee. This Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors’ rights generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
(c)
the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter or by-laws
of the Institutional Trustee; and
(d)
no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority is required for the execution, delivery
or
performance by the Institutional Trustee of this Declaration.
Section
12.2. Representations
of the Delaware Trustee.
The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee’s acceptance of its appointment as
Delaware Trustee that:
(a)
if
it is
not a natural person, the Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b)
if
it is
not a natural person, the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been
duly executed and delivered by the Delaware Trustee, and under Delaware law
(excluding any securities laws) constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors’ rights generally and to
general principles of equity and the discretion of the court (regardless of
whether considered in a proceeding in equity or at law);
(c)
if
it is
not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Delaware Trustee;
(d)
it
has
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration;
(e)
no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and
(f)
the
Delaware Trustee is a natural person who is a resident of the State of Delaware
or, if not a natural person, it is an entity which has its principal place
of
business in the State of Delaware and, in either case, a Person that satisfies
for the Trust the requirements of Section 3807 of the Statutory Trust
Act.
ARTICLE
XIII
MISCELLANEOUS
Section
13.1. Notices.
All
notices provided for in this Declaration shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class mail) or mailed
by first class mail, as follows:
(a)
if
given
to the Trust, in care of the Administrators at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to the
Holders of the Securities):
CMTV
Statutory Trust I
c/o
Community Bancorp.
4811
U.S.
Route #5
Derby,
Vermont 05829
Attention: Stephen P.
Marsh
Telecopy: 802-334-3484
(b)
if
given
to the Delaware Trustee, at the Delaware Trustee’s mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the
Holders of the Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention: Corporate
Trust Administration
Telecopy: 302-636-4140
(c)
if
given
to the Institutional Trustee, at the Institutional Trustee’s mailing address set
forth below (or such other address as the Institutional Trustee may give notice
of to the Holders of the Securities):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention: Corporate
Trust Administration
Telecopy: 302-636-4140
(d)
if
given
to the Holder of the Common Securities, at the mailing address of the Sponsor
set forth below (or such other address as the Holder of the Common Securities
may give notice of to the Trust):
Community
Bancorp.
4811
U.S.
Route #5
Derby,
Vermont 05829
Attention: Stephen P.
Marsh
Telecopy: 802-334-3484
(e)
if
given
to any other Holder, at the address set forth on the books and records of the
Trust.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
Section
13.2. Governing
Law.
This
Declaration and the rights of the parties hereunder shall be governed by and
interpreted in accordance with the law of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to the principles
of
conflict of laws of the State of Delaware or any other jurisdiction that would
call for the application of the law of any jurisdiction other than the State
of
Delaware; provided, however, that there shall not be applicable to
the Trust, the Trustees or this Declaration any provision of the laws (statutory
or common) of the State of Delaware pertaining to trusts that relate to or
regulate, in a manner inconsistent with the terms hereof (a) the filing
with any court or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, or
(f) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding or investing trust assets.
Section
13.3. Intention
of the Parties.
It
is the
intention of the parties hereto that the Trust be classified for United States
federal income tax purposes as a grantor trust. The provisions of this
Declaration shall be interpreted to further this intention of the
parties.
Section
13.4. Headings.
Headings
contained in this Declaration are inserted for convenience of reference only
and
do not affect the interpretation of this Declaration or any provision
hereof.
Section
13.5. Successors
and Assigns.
Whenever
in this Declaration any of the parties hereto is named or referred to, the
successors and assigns of such party shall be deemed to be included, and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether or not so expressed.
Section
13.6. Partial
Enforceability.
If
any
provision of this Declaration, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
Section
13.7. Counterparts.
This
Declaration may contain more than one counterpart of the signature page and
this
Declaration may be executed by the affixing of the signature of each of the
Trustees and Administrators to any of such counterpart signature
pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of
the
signers had signed a single signature page.
Signatures
appear on the following page
IN
WITNESS WHEREOF, the undersigned have caused these presents to be executed
as of
the day and year first above written.
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee
By: /s/
W.T. Morris,
II
Name:
W.
Thomas Morris,
II
Title:
Assistant
Vice
President
WILMINGTON
TRUST COMPANY,
as
Institutional Trustee
By: /s/
W.T. Morris,
II
Name:
W. Thomas Morris, II
Title:
Assistant
Vice
President
COMMUNITY
BANCORP., as Sponsor
By: /s/
Richard C.
White
Name:
Richard
C.
White
Title:
Chairman
&
CEO
ADMINISTRATORS
OF CMTV STATUTORY TRUST I
By: /s/
Richard C.
White
Administrator
By: /s/
Stephen P.
Marsh
Administrator
By: /s/
Alan A.
Wing
Administrator
ANNEX
I
TERMS
OF
SECURITIES
Pursuant
to Section 6.1 of the Amended
and Restated Declaration of Trust, dated as of October 31, 2007 (as amended
from time to time, the “Declaration”), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities and the Common Securities are set out below (each capitalized term
used but not defined herein has the meaning set forth in the
Declaration):
1. Designation
and Number.
(a) 12,500
Fixed/Floating Rate Capital Securities of CMTV Statutory Trust I (the
“Trust”), with an aggregate stated liquidation amount with respect to the assets
of the Trust of twelve million five hundred thousand dollars ($12,500,000.00)
and a stated liquidation amount with respect to the assets of the Trust of
$1,000.00 per Capital Security, are hereby designated for the purposes of
identification only as the “Capital Securities”. The Capital
Security Certificates evidencing the Capital Securities shall be substantially
in the form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
(b) 387
Fixed/Floating Rate Common Securities of the Trust (the “Common
Securities”) will be evidenced by Common Security Certificates substantially
in the form of Exhibit A-2 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. Distributions.
(a) Distributions
will be payable on each Security for the Distribution Period beginning on (and
including) the date of original issuance and ending on (but excluding) the
Distribution Payment Date in December 2012 at a rate per annum of 7.56% and
shall bear interest for each successive Distribution Period beginning on (and
including) the Distribution Payment Date in December 2012, and each succeeding
Distribution Payment Date, and ending on (but excluding) the next succeeding
Distribution Payment Date at a rate per annum equal to the 3-Month LIBOR,
determined as described below, plus 2.85% (the “Coupon Rate”), applied to
the stated liquidation amount thereof, such rate being the rate of interest
payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon
compounded quarterly at the applicable Distribution Rate (to the extent
permitted by law). Distributions, as used herein, include cash
distributions and any such compounded distributions unless otherwise
noted. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to
the
extent the Institutional Trustee has funds available therefor. The
amount of the Distribution payable (i) for any Distribution Period
commencing on or after the date of original issuance but before the Distribution
Payment Date in December 2012 will be computed on the basis of a 360-day year
of
twelve 30-day months, and (ii) for the Distribution Period commencing on
the Distribution Payment Date in December 2012 and each succeeding Distribution
Period will be calculated by applying the Distribution Rate to the stated
liquidation amount outstanding at the commencement of the Distribution Period
and multiplying each such number by the actual number of days in the
Distribution Period concerned divided by 360. All percentages
resulting from any calculations on the Capital Securities will be rounded,
if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward)).
(b) Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment
periods as described herein, quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, or if such
day is not a Business Day, then the next succeeding Business Day (each a
“Distribution Payment Date”) (it being understood that interest accrues
for any such non-Business Day during the applicable Distribution Period,
beginning on or after December 15, 2012), commencing on the Distribution
Payment Date in December 2007 when, as and if available for
payment. The Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures, so long as no Acceleration Event
of Default has occurred and is continuing, by extending the payment period
on
the Debentures for up to 20 consecutive quarterly periods (each an “Extension
Period”) at any time and from time to time, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest will accrue
at
an annual rate equal to the Distribution Rate in effect for each such Extension
Period, compounded quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). No
Extension Period may end on a date other than a Distribution Payment
Date. At the end of any such Extension Period, the Debenture Issuer
shall pay all interest then accrued and unpaid on the Debentures (together
with
Additional Interest thereon); provided, however, that no Extension
Period may extend beyond the Maturity Date and providedfurther,
however, that during any such Extension Period, the Debenture
Issuer and
its Affiliates shall not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect
to,
any of the Debenture Issuer’s or its Affiliates’ capital stock (other than
payments of dividends or distributions to the Debenture Issuer or payments
of
dividends from direct or indirect subsidiaries of the Debenture Issuer to their
parent corporations, which also shall be direct or indirect subsidiaries of
the
Debenture Issuer) or make any guarantee payments with respect to the foregoing,
or (ii) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Debenture Issuer
or
any Affiliate that rank pari passu in all respects with or junior
in interest to the Debentures (other than, with respect to clauses (i) and
(ii) above, (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Debenture Issuer in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit
of
one or more employees, officers, directors or consultants, in connection with
a
dividend reinvestment or stockholder stock purchase plan or in connection with
the issuance of capital stock of the Debenture Issuer (or securities convertible
into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Debenture
Issuer’s capital stock (or any capital stock of a subsidiary of the Debenture
Issuer) for any class or series of the Debenture Issuer’s capital stock or of
any class or series of the Debenture Issuer’s indebtedness for any class or
series of the Debenture Issuer’s capital stock, (c) the purchase of
fractional interests in shares of the Debenture Issuer’s capital stock pursuant
to the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholders’ rights plan, or the issuance of rights, stock
or other property under any stockholders’ rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, (f) payments of principal or interest on
debt securities or payments of cash dividends or distributions on any capital
stock issued by an Affiliate that is not, in whole or in part, a subsidiary
of
the Debenture Issuer (or any redemptions, repurchases or liquidation payments
on
such stock or securities), or (g) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof
shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Securities shall be deferred for a period
equal to the Extension Period. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates to Holders of the Securities as they appear on the books and records
of the Trust on the record date immediately preceding such
date. Distributions on the Securities must be paid on the dates
payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account of the Trust. The Trust’s funds available for Distribution to
the Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by
the Trust is guaranteed by the Guarantor pursuant to the Guarantee.
(c) Distributions
on the Securities will be payable to the Holders thereof as they appear on
the
books and records of the Trust on the relevant record dates. The
relevant record dates shall be fifteen days before the relevant Distribution
Payment Date. Distributions payable on any Securities that are not
punctually paid on any Distribution Payment Date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, as the case may
be,
when due (taking into account any Extension Period), will cease to be payable
to
the Person in whose name such Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the Person
in
whose name such Securities are registered on the special record date or other
specified date determined in accordance with the Indenture.
(d) In
the
event that there is any money or other property held by or for the Trust that
is
not accounted for hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. Liquidation
Distribution Upon Dissolution. In the event of the voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Trust
(each a “Liquidation”) other than in connection with a redemption of the
Debentures, the Holders of the Securities will be entitled to receive out of
the
assets of the Trust available for distribution to Holders of the Securities,
after satisfaction of liabilities to creditors of the Trust (to the extent
not
satisfied by the Debenture Issuer), distributions equal to the aggregate of
the
stated liquidation amount of $1,000.00 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
“Liquidation Distribution”), unless in connection with such Liquidation,
the Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Securities, with an interest rate equal to
the
Distribution Rate of, and bearing accrued and unpaid interest in an amount
equal
to the accrued and unpaid Distributions on, and having the same record date
as,
such Securities, after paying or making reasonable provision to pay all claims
and obligations of the Trust in accordance with the Statutory Trust Act, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
The
Sponsor, as the Holder of all of the Common Securities, has the right at any
time to dissolve the Trust (including, without limitation, upon the occurrence
of a Special Event), subject to the receipt by the Debenture Issuer of prior
approval from the Board of Governors of the Federal Reserve System, or its
designated district bank, as applicable, and any successor federal agency that
is primarily responsible for regulating the activities of the Sponsor (the
“Federal Reserve”), if the Sponsor is a bank holding company, or from the
Office of Thrift Supervision and any successor federal agency that is primarily
responsible for regulating the activities of Sponsor, (the “OTS”) if the
Sponsor is a savings and loan holding company, in either case if then required
under applicable capital guidelines or policies of the Federal Reserve or OTS,
as applicable, and, after satisfaction of liabilities to creditors of the Trust,
cause the Debentures to be distributed to the Holders of the Securities on
a Pro
Rata basis in accordance with the aggregate stated liquidation amount
thereof.
If
a
Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or
(v) in Section 7.1(a) of the Declaration, the Trust shall be liquidated by
the
Institutional Trustee as expeditiously as it determines to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust,
to
the Holders of the Securities, the Debentures on a Pro Rata basis to the extent
not satisfied by the Debenture Issuer, unless such distribution is determined
by
the Institutional Trustee not to be practical, in which event such Holders
will
be entitled to receive out of the assets of the Trust available for distribution
to the Holders, after satisfaction of liabilities of creditors of the Trust
to
the extent not satisfied by the Debenture Issuer, an amount equal to the
Liquidation Distribution. An early Liquidation of the Trust pursuant
to clause (iv) of Section 7.1(a) of the Declaration shall occur if the
Institutional Trustee determines that such Liquidation is possible by
distributing, after satisfaction of liabilities to creditors of the Trust,
to
the Holders of the Securities on a Pro Rata basis, the Debentures, and such
distribution occurs.
If,
upon
any such Liquidation the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on
such
Capital Securities shall be paid to the Holders of the Trust Securities on
a Pro
Rata basis, except that if an Event of Default has occurred and is continuing,
the Capital Securities shall have a preference over the Common Securities with
regard to such distributions.
After
the
date for any distribution of the Debentures upon dissolution of the Trust
(i) the Securities of the Trust will be deemed to be no longer outstanding,
(ii) upon surrender of a Holder’s Securities certificate, such Holder of
the Securities will receive a certificate representing the Debentures to be
delivered upon such distribution, (iii) any certificates representing the
Securities still outstanding will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount equal
to the aggregate stated liquidation amount with an interest rate identical
to
the Distribution Rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, the Securities until such certificates
are
presented to the Debenture Issuer or its agent for transfer or reissuance (and
until such certificates are so surrendered, no payments of interest or principal
shall be made to Holders of Securities in respect of any payments due and
payable under the Debentures; provided, however that such failure
to pay shall not be deemed to be an Event of Default and shall not entitle
the
Holder to the benefits of the Guarantee), and (iv) all rights of Holders of
Securities under the Declaration shall cease, except the right of such Holders
to receive Debentures upon surrender of certificates representing such
Securities.
4. Redemption
and Distribution.
(a) The
Debentures will mature on December 15, 2037. The Debentures may
be redeemed by the Debenture Issuer, in whole or in part, at any Distribution
Payment Date on or after the Distribution Payment Date in December 2012, at
the
Redemption Price. In addition, the Debentures may be redeemed by the Debenture
Issuer at the Special Redemption Price, in whole but not in part, at any
Distribution Payment Date, upon the occurrence and continuation of a Special
Event within 120 days following the occurrence of such Special Event at the
Special Redemption Price, upon not less than 30 nor more than 60 days’
notice to holders of such Debentures so long as such Special Event is
continuing. In each case, the right of the Debenture Issuer to redeem the
Debentures is subject to the Debenture Issuer having received prior approval
from the Federal Reserve (if the Debenture Issuer is a bank holding company)
or
prior approval from the OTS (if the Debenture Issuer is a savings and loan
holding company), in each case if then required under applicable capital
guidelines or policies of the applicable federal agency. The Sponsor
shall appoint a Quotation Agent, which shall be a designee of the Institutional
Trustee, for the purpose of performing the services contemplated in or by
reference in, the definition of Special Redemption Price. Any error
in the calculation of the Special Redemption Price by the Quotation Agent or
the
Debenture Trustee may be corrected at any time by notice delivered to the
Sponsor and the holders of the Capital Securities. Subject to the
corrective rights set forth above, all certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or
obtained for the purposes of the provisions relating to the payment and
calculation of the Special Redemption Price on the Debentures or the Capital
Securities by the Debenture Trustee, the Quotation Agent or the Institutional
Trustee, as the case may be, shall (in the absence of willful default, bad
faith
or manifest error) be final, conclusive and binding on the holders of the
Debentures and the Capital Securities, the Trust and the Sponsor, and no
liability shall attach (except as provided above) to the Debenture Trustee,
the
Quotation Agent or the Institutional Trustee in connection with the exercise
or
non-exercise by any of them of their respective powers, duties and
discretion.
“3-Month
LIBOR” means the London interbank offered interest rate for three-month,
U.S. dollar deposits determined by the Debenture Trustee in the following order
of priority:
(1) the
rate (expressed as a percentage per annum) for U.S. dollar deposits having
a
three-month maturity that appears on Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on the related Determination Date (as defined
below). “Reuters Page LIBOR01” means the display designated as
“LIBOR01” on Reuters or such other page as may replace Reuters Page LIBOR01 on
that service or such other service or services as may be nominated by the
British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits;
(2) if
such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in
the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such
quotations;
(3) if
fewer than two such quotations are provided as requested in clause (2)
above, the Debenture Trustee will request four major New York City banks to
provide such banks’ offered quotations (expressed as percentages per annum) to
leading European banks for loans in U.S. dollars as of 11:00 a.m. (London
time) on such Determination Date. If at least two such quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and
(4) if
fewer than two such quotations are provided as requested in clause (3)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution
Period.
If
the
rate for U.S. dollar deposits having a three-month maturity that initially
appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the
related Determination Date is superseded on the Reuters Page LIBOR01 by a
corrected rate by 12:00 noon (London time) on such Determination Date, then
the corrected rate as so substituted on the applicable page will be the
applicable 3-Month LIBOR for such Determination Date.
The
Distribution Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
“Capital
Treatment Event” means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of any amendment to, or change (including any announced
prospective change) in, the laws, rules or regulations of the United States
or
any political subdivision thereof or therein, or as the result of any official
or administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or
which
pronouncement, action or decision is announced on or after the date of original
issuance of the Debentures, there is more than an insubstantial risk that the
Sponsor will not, within 90 days of the date of such opinion, be entitled to
treat an amount equal to the aggregate liquidation amount of the Capital
Securities as “Tier 1 Capital” (or its then equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Sponsor (or if the Sponsor is not a bank holding company
or
otherwise is not subject to the Federal Reserve’s risk-based capital adequacy
guidelines, such guidelines applied to the Sponsor as if the Sponsor were
subject to such guidelines); provided, however, that the inability
of the Sponsor to treat all or any portion of the liquidation amount of the
Capital Securities as Tier l Capital shall not constitute the basis for a
Capital Treatment Event, if such inability results from the Sponsor having
cumulative preferred stock, minority interests in consolidated subsidiaries,
or
any other class of security or interest which the Federal Reserve or OTS, as
applicable, may now or hereafter accord Tier 1 Capital treatment in excess
of the amount which may now or hereafter qualify for treatment as Tier 1
Capital under applicable capital adequacy guidelines;
providedfurther, however, that the distribution of
Debentures in connection with the Liquidation of the Trust shall not in and
of
itself constitute a Capital Treatment Event unless such Liquidation shall have
occurred in connection with a Tax Event or an Investment Company
Event.
“Comparable
Treasury Issue” means with respect to any Special Redemption Date the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Fixed Rate Period Remaining Life that would be utilized,
at
the time of selection and in accordance with customary financial practice,
in
pricing new issues of corporate debt securities of comparable maturity to the
Fixed Rate Period Remaining Life. If no United States Treasury
security has a maturity which is within a period from 3 months before to 3
months after the Distribution Payment Date in December 2012, the two most
closely corresponding United States Treasury securities as selected by the
Quotation Agent shall be used as the Comparable Treasury Issue, and the Treasury
Rate shall be interpolated and extrapolated on a straight-line basis, rounding
to the nearest month using such securities.
“Comparable
Treasury Price” means (a) the average of 5 Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Quotation
Agent obtains fewer than 5 such Reference Treasury Dealer Quotations, the
average of all such Quotations.
“Determination
Date” means the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in the London
interbank market) preceding the particular Distribution Period for which a
Coupon Rate is being determined.
“Fixed
Rate Period Remaining Life” means, with respect to any Debenture, the period
from the Special Redemption Date for such Debenture to the Distribution Payment
Date in December 2012.
“Investment
Company Event” means the receipt by the Debenture Issuer and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or written change (including
any announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or, within
90 days of the date of such opinion, will be considered an Investment Company
that is required to be registered under the Investment Company Act which change
or prospective change becomes effective or would become effective, as the case
may be, on or after the date of the issuance of the Debentures.
“Maturity
Date” means December 15, 2037.
“Primary
Treasury Dealer” shall mean either a primary United States Government
securities dealer or an entity of nationally recognized standing in matters
pertaining to the quotation of treasury securities that is reasonably acceptable
to the Sponsor and the Institutional Trustee.
“Quotation
Agent” means a designee of the Institutional Trustee who shall be a Primary
Treasury Dealer.
“Redemption
Date” shall mean the date fixed for the redemption of Capital Securities,
which shall be any Distribution Payment Date on or after the Distribution
Payment Date in December 2012.
“Redemption
Price” means 100% of the principal amount of the Debentures being redeemed,
plus accrued and unpaid Interest on such Debentures to the Redemption
Date.
“Reference
Treasury Dealer” means (i) the Quotation Agent and (ii) any other
Primary Treasury Dealer selected by the Debenture Trustee after consultation
with the Debenture Issuer.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the
Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m.,
New York City time, on the third Business Day preceding such Redemption
Date.
“Special
Event” means a Tax Event, an Investment Company Event or a Capital Treatment
Event.
“Special
Redemption Date” means a date on which a Special Event redemption occurs,
which shall be a Distribution Payment Date.
“Special
Redemption Price” means (a) if the Special Redemption Date occurs
before the Distribution Payment Date in December 2012, the greater of
(i) 107.5% of the principal amount of the Debentures, plus accrued and
unpaid Interest on the Debentures to the Special Redemption Date, or
(ii) as determined by the Quotation Agent, (A) the sum of the present
values of the scheduled payments of principal and Interest on the Debentures
during the Fixed Rate Period Remaining Life of the Debentures (assuming the
Debentures matured on December 15, 2012) discounted to the Special
Redemption Date on a quarterly basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate, plus (B) accrued and unpaid
Interest on the Debentures to such Special Redemption Date, or (b) if the
Special Redemption Date occurs on or after the Distribution Payment Date in
December 2012, 100% of the principal amount of the Debentures being redeemed,
plus accrued and unpaid Interest on such Debentures to the Special Redemption
Date.
“Tax
Event” means the receipt by the Debenture Issuer and the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the
laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement including any notice or announcement of intent to adopt such
procedures or regulations) (an “Administrative Action”) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in
connection with a proceeding involving the Debenture Issuer or the Trust and
whether or not subject to review or appeal, which amendment, clarification,
change, Administrative Action or decision is enacted, promulgated or announced,
in each case on or after the date of original issuance of the Debentures, there
is more than an insubstantial risk that: (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures;
(ii) interest payable by the Debenture Issuer on the Debentures is not, or
within 90 days of the date of such opinion, will not be, deductible by the
Debenture Issuer, in whole or in part, for United States federal income tax
purposes; or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties
or
other governmental charges.
“Treasury
Rate” means (i) the yield, under the heading which represents the
average for the week immediately prior to the date of calculation, appearing
in
the most recently published statistical release designated H.15 (519) or any
successor publication which is published weekly by the Federal Reserve and
which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Fixed Rate Period Remaining Life (if no maturity
is within three months before or after the Fixed Rate Period Remaining Life,
yields for the two published maturities most closely corresponding to the Fixed
Rate Period Remaining Life shall be determined and the Treasury Rate shall
be
interpolated or extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor release) is
not published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Special Redemption
Date. The Treasury Rate shall be calculated by the Quotation Agent on
the third Business Day preceding the Special Redemption Date.
(b) Upon
the
repayment in full at maturity or redemption in whole or in part of the
Debentures (other than following the distribution of the Debentures to the
Holders of the Securities), the proceeds from such repayment or payment shall
concurrently be applied to redeem Pro Rata at the applicable Redemption Price
or
Special Redemption Price, as applicable, Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures
so
repaid or redeemed; provided, however, that holders of such
Securities shall be given not less than 30 nor more than 60 days’ notice of such
redemption (other than at the scheduled maturity of the
Debentures).
(c) If
fewer
than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be redeemed Pro Rata from each Holder of Capital
Securities.
(d) The
Trust
may not redeem fewer than all the outstanding Capital Securities unless all
accrued and unpaid Distributions have been paid on all Capital Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(e) Redemption
or Distribution Procedures.
(i) Notice
of
any redemption of, or notice of distribution of the Debentures in exchange
for,
the Securities (a “Redemption/Distribution Notice”) will be given by the
Trust by mail to each Holder of Securities to be redeemed or exchanged not
fewer
than 30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this
paragraph 4(e)(i), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of such Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of such Securities at the address of each
such
Holder appearing on the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings
with
respect to any other Holder.
(ii) If
the
Securities are to be redeemed and the Trust gives a Redemption/ Distribution
Notice, which notice may only be issued if the Debentures are redeemed as set
out in this paragraph 4 (which notice will be irrevocable), then,
provided that the Institutional Trustee has a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price or Special
Redemption Price, as applicable, to the Holders of such Securities by check
mailed to the address of each such Holder appearing on the books and records
of
the Trust on the Redemption Date. If a Redemption/Distribution Notice
shall have been given and funds deposited as required then immediately prior
to
the close of business on the date of such deposit Distributions will cease
to
accrue on the Securities so called for redemption and all rights of Holders
of
such Securities so called for redemption will cease, except the right of the
Holders of such Securities to receive the applicable Redemption Price or Special
Redemption Price specified in paragraph 4(a), but without interest on such
Redemption Price or Special Redemption Price. If payment of the
Redemption Price or Special Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Trust or by the
Debenture Issuer as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the Distribution Rate from the original
Redemption Date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price or Special Redemption Price. In the
event of any redemption of the Capital Securities issued by the Trust in part,
the Trust shall not be required to (i) issue, register the transfer of or
exchange any Security during a period beginning at the opening of business
fifteen days before any selection for redemption of the Capital Securities
and
ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the Capital
Securities to be so redeemed or (ii) register the transfer of or exchange
any Capital Securities so selected for redemption, in whole or in part, except
for the unredeemed portion of any Capital Securities being redeemed in
part.
(iii) Redemption/Distribution
Notices shall be sent by the Administrators on behalf of the Trust to
(A) in respect of the Capital Securities, the Holders thereof and
(B) in respect of the Common Securities, the Holder thereof.
(iv) Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and provided that the acquiror is not the
Holder of the Common Securities or the obligor under the Indenture, the Sponsor
or any of its subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or by private
agreement.
5. Voting
Rights - Capital Securities.
(a) Except
as
provided under paragraphs 5(b) and 7 and as otherwise required by law and
the Declaration, the Holders of the Capital Securities will have no voting
rights. The Administrators are required to call a meeting of the Holders of
the
Capital Securities if directed to do so by Holders of at least 10% in
liquidation amount of the Capital Securities.
(b) Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee
in
certain circumstances set forth in the last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Capital Securities, voting
separately as a class, have the right to direct the time, method, and place
of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including the right to direct the Institutional Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture as the holder of the Debentures, (ii) waive any past default that
is waivable under the Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent on behalf of all the Holders of the Capital
Securities to any amendment, modification or termination of the Indenture or
the
Debentures where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would
require the consent or act of the holders of greater than a simple majority
in
aggregate principal amount of Debentures (a “Super Majority”) affected
thereby, the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Capital Securities outstanding which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its rights under
the
Debentures after the Holders of a Majority in liquidation amount of such Capital
Securities have so directed the Institutional Trustee, to the fullest extent
permitted by law, a Holder of the Capital Securities may institute a legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest or principal on the Debentures on the date the interest or
principal is payable (or in the case of redemption, the Redemption Date or
the
Special Redemption Date, as applicable), then a Holder of record of the Capital
Securities may directly institute a proceeding for enforcement of payment,
on or
after the respective due dates specified in the Debentures, to such Holder
directly of the principal of or interest on the Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder. The Institutional Trustee shall notify all Holders
of
the Capital Securities of any default actually known to the Institutional
Trustee with respect to the Debentures unless (x) such default has been
cured prior to the giving of such notice or (y) the Institutional Trustee
determines in good faith that the withholding of such notice is in the interest
of the Holders of such Capital Securities, except where the default relates
to
the payment of principal of or interest on any of the Debentures. Such notice
shall state that such Indenture Event of Default also constitutes an Event
of
Default hereunder. Except with respect to directing the time, method and place
of conducting a proceeding for a remedy, the Institutional Trustee shall not
take any of the actions described in clauses (i), (ii) or (iii) above
unless the Institutional Trustee has obtained an opinion of tax counsel to
the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for United States federal income tax
purposes.
In
the
event the consent of the Institutional Trustee, as the holder of the Debentures,
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture, the Institutional Trustee shall request the
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of
the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require the
consent of a Super-Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not take any such action in
accordance with the directions of the Holders of the Securities unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that,
as a result of such action, the Trust will not be classified as other than
a
grantor trust for United States federal income tax purposes.
A
waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders of
the
Capital Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders of
the
Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record
of
the Capital Securities. Each such notice will include a statement setting forth
the following information (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or
of
such matter upon which written consent is sought and (iii) instructions for
the delivery of proxies or consents. No vote or consent of the Holders of the
Capital Securities will be required for the Trust to redeem and cancel Capital
Securities or to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding
that Holders of the Capital Securities are entitled to vote or consent under
any
of the circumstances described above, any of the Capital Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the
Holder thereof to vote or consent and shall, for purposes of such vote or
consent, be treated as if such Capital Securities were not
outstanding.
In
no
event will Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the
Trust. Under certain circumstances as more fully described in the
Declaration, Holders of Capital Securities have the right to vote to appoint,
remove or replace the Institutional Trustee and the Delaware
Trustee.
6. Voting
Rights - Common Securities.
(a) Except
as
provided under paragraphs 6(b), 6(c) and 7 and as otherwise required by law
and the Declaration, the Common Securities will have no voting
rights.
(b) The
Holders of the Common Securities are entitled, in accordance with
Article IV of the Declaration, to vote to appoint, remove or replace any
Administrators.
(c) Subject
to Section 6.7 of the Declaration and only after each Event of Default (if
any)
with respect to the Capital Securities has been cured, waived, or otherwise
eliminated and subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Common
Securities, voting separately as a class, may direct the time, method, and
place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time, method,
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waiving any past default and its
consequences that is waivable under the Indenture, or (iii) exercising any
right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable; provided, however, that, where a consent
or action under the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent or take such action at the written direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Notwithstanding this
paragraph 6(c), the Institutional Trustee shall not revoke any action
previously authorized or approved by a vote or consent of the Holders of the
Capital Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional Trustee
shall not take any action described in (i), (ii) or (iii) above, unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that
for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights, to the fullest extent
permitted by law, under the Declaration, any Holder of the Common Securities
may
institute a legal proceeding directly against any Person to enforce the
Institutional Trustee’s rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other
Person.
Any
approval or direction of Holders of the Common Securities may be given at a
separate meeting of Holders of the Common Securities convened for such purpose,
at a meeting of all of the Holders of the Securities in the Trust or pursuant
to
written consent. The Administrators will cause a notice of any
meeting at which Holders of the Common Securities are entitled to vote, or
of
any matter upon which action by written consent of such Holders is to be taken,
to be mailed to each Holder of the Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote
or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No
vote
or consent of the Holders of the Common Securities will be required for the
Trust to redeem and cancel Common Securities or to distribute the Debentures
in
accordance with the Declaration and the terms of the Securities.
7. Amendments
to Declaration and Indenture.
(a) In
addition to any requirements under Section 11.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Trustees, Sponsor
or
Administrators otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
Liquidation of the Trust, other than as described in Section 7.1 of the
Declaration, then the Holders of outstanding Securities, voting together as
a
single class, will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of the
Holders of at least a Majority in liquidation amount of the Securities, affected
thereby; provided, however, if any amendment or proposal referred
to in clause (i) above would adversely affect only the Capital Securities
or only the Common Securities, then only the affected class will be entitled
to
vote on such amendment or proposal and such amendment or proposal shall not
be
effective except with the approval of a Majority in liquidation amount of such
class of Securities.
(b) In
the
event the consent of the Institutional Trustee as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect
to
such amendment, modification or termination and shall vote with respect to
such
amendment, modification, or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require a
Super
Majority, the Institutional Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
(c) Notwithstanding
the foregoing, no amendment or modification may be made to the Declaration
if
such amendment or modification would (i) cause the Trust to be classified
for purposes of United States federal income taxation as other than a grantor
trust, (ii) reduce or otherwise adversely affect the powers of the
Institutional Trustee or (iii) cause the Trust to be deemed an Investment
Company which is required to be registered under the Investment Company
Act.
(d) Notwithstanding
any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of distributions and other payments upon
redemption or otherwise, on or after their respective due dates, or to institute
a suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
For
the protection and enforcement of the foregoing provision, each and every Holder
of the Capital Securities shall be entitled to such relief as can be given
either at law or equity.
8. Pro
Rata. A reference in these terms of the Securities to any
payment, distribution or treatment as being “Pro Rata” shall mean pro
rata to each Holder of the Securities according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Securities then outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing,
in
which case any funds available to make such payment shall be paid first to
each
Holder of the Capital Securities Pro Rata according to the aggregate liquidation
amount of the Capital Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Capital Securities outstanding, and only
after satisfaction of all amounts owed to the Holders of the Capital Securities,
to each Holder of the Common Securities Pro Rata according to the aggregate
liquidation amount of the Common Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Common Securities
outstanding.
9. Ranking. The
Capital Securities rank pari passu with and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of Default
has occurred and is continuing, the rights of Holders of the Common Securities
to receive payment of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of the Holders of the Capital
Securities with the result that no payment of any Distribution on, or Redemption
Price (or Special Redemption Price) of, any Common Security, and no other
payment on account of redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated
and
unpaid Distributions on all outstanding Capital Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price (or Special Redemption Price) the full amount of such
Redemption Price (or Special Redemption Price) on all outstanding Capital
Securities then called for redemption, shall have been made or provided for,
and
all funds immediately available to the Institutional Trustee shall first be
applied to the payment in full in cash of all Distributions on, or the
Redemption Price (or Special Redemption Price) of, the Capital Securities then
due and payable.
10. Acceptance
of Guarantee and Indenture. Each Holder of the Capital Securities and the
Common Securities, by the acceptance of such Securities, agrees to the
provisions of the Guarantee, including the subordination provisions therein
and
to the provisions of the Indenture.
11. No
Preemptive Rights. The Holders of the Securities shall have no preemptive or
similar rights to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration. The Sponsor will provide
a
copy of the Declaration, the Guarantee, and the Indenture to a Holder without
charge on written request to the Sponsor at its principal place of
business.
EXHIBIT
A-1
FORM
OF CAPITAL SECURITY CERTIFICATE
[FORM
OF
FACE OF SECURITY]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR
THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO
A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION
OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE
TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES
OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND
HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE
IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES
OF $1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES
IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED
TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE
DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Certificate
Number
P-1 12,500
Capital Securities
[CUSIP
NO. [_______] **To be inserted at the request of a subsequent
transferee]
October 31,
2007
Certificate
Evidencing Fixed/Floating Rate Capital Securities
of
CMTV
Statutory Trust I
(liquidation
amount $1,000.00 per Capital Security)
CMTV
Statutory Trust I, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that First Tennessee Bank National
Association is the registered owner of capital securities of the Trust
representing undivided beneficial interests in the assets of the Trust,
(liquidation amount $1,000.00 per capital security) (the “Capital Securities”).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of October 31, 2007, among Richard C. White,
Alan A. Wing and Stephen P. Marsh, as Administrators, Wilmington Trust
Company, as Delaware Trustee, Wilmington Trust Company, as Institutional
Trustee, Community Bancorp., as Sponsor, and the holders from time to time
of
undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Capital Securities as set forth in Annex I
to such amended and restated declaration as the same may be amended from time
to
time (the “Declaration”). Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Guarantee, and the Indenture
to the Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon
receipt of this Security, the Holder is bound by the Declaration and is entitled
to the benefits thereunder.
By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures.
This
Capital Security is governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to principles of conflict of
laws.
Signatures
appear on following page
IN
WITNESS WHEREOF, the Trust has duly executed this certificate.
CMTV
STATUTORY TRUST I
By:
Name:
Title: Administrator
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Capital Securities referred to in the within-mentioned
Declaration.
WILMINGTON
TRUST COMPANY,
as
the
Institutional Trustee
By:
Authorized
Officer
[FORM
OF
REVERSE OF CAPITAL SECURITY]
Distributions
payable on each Capital Security will be payable at an annual rate equal to
7.56% beginning on (and including) the date of original issuance and ending
on
(but excluding) the Distribution Payment Date in December 2012 and at an annual
rate for each successive period beginning on (and including) the Distribution
Payment Date in December 2012, and each succeeding Distribution Payment Date,
and ending on (but excluding) the next succeeding Distribution Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 2.85% (the “Coupon Rate”), applied to the stated liquidation amount
of $1,000.00 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions in
arrears will bear interest thereon compounded quarterly at the Distribution
Rate
(to the extent permitted by applicable law). The term “Distributions”
as used herein includes cash distributions and any such compounded distributions
unless otherwise noted. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Institutional
Trustee and to the extent the Institutional Trustee has funds available
therefor. As used herein, “Determination Date” means the date that is
two London Banking Days (i.e., a business day in which dealings in deposits
in
U.S. dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period. The amount of the
Distribution payable (i) for any Distribution Period commencing on or after
the date of original issuance but before the Distribution Payment Date in
December 2012 will be computed on the basis of a 360-day year of twelve 30-day
months, and (ii) for the Distribution Period commencing on the Distribution
Payment Date in December 2012 and each succeeding Distribution Period will
be
calculated by applying the Distribution Rate to the stated liquidation amount
outstanding at the commencement of the Distribution Period and multiplying
each
such number by the actual number of days in the Distribution Period concerned
divided by 360.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Debenture Trustee in the
following order of priority: (i) the rate (expressed as a percentage
per annum) for U.S. dollar deposits having a three-month maturity that appears
on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the related
Determination Date (“Reuters Page LIBOR01” means the display designated as
“LIBOR01” on Reuters or such other page as may replace Reuters Page LIBOR01 on
that service or such other service or services as may be nominated by the
British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits); (ii) if
such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in
the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London time)
on
such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; (iii) if fewer
than two such quotations are provided as requested in clause (ii) above, the
Debenture Trustee will request four major New York City banks to provide such
banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on
such
Determination Date. If at least two such quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer
than two such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution
Period. If the rate for U.S. dollar deposits having a three-month
maturity that initially appears on Reuters Page LIBOR01 as of 11:00 a.m. (London
time) on the related Determination Date is superseded on the Reuters Page
LIBOR01 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will
be
the applicable 3-Month LIBOR for such Determination Date.
The
Distribution Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Capital Securities will
be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and
December 15 of each year or if any such day is not a Business Day, then the
next succeeding Business Day (each such day, a “Distribution Payment Date”) (it
being understood that interest accrues for any such non-Business Day during
the
applicable Distribution Period, beginning on or after December 15, 2012),
commencing on the Distribution Payment Date in December 2007. The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures, so long as no Acceleration Event of Default has occurred
and
is continuing, by extending the interest payment period on the Debentures for
up
to 20 consecutive quarterly periods (each an “Extension Period”) at any time and
from time to time on the Debentures, subject to the conditions described below,
during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest will accrue
at
an annual rate equal to the Distribution Rate in effect for each such Extension
Period, compounded quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). No Extension Period may
end on a date other than a Distribution Payment Date. At the end of any such
Extension Period, the Debenture Issuer shall pay all interest then accrued
and
unpaid on the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond the
Maturity Date. Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof
shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date.
Upon the termination of any Extension Period and upon the payment of all accrued
and unpaid interest and Additional Interest, the Debenture Issuer may commence
a
new Extension Period, subject to the foregoing requirements. No
interest or Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest. During any Extension Period, Distributions on
the Capital Securities shall be deferred for a period equal to the Extension
Period. If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates, to Holders of
the
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. Distributions on the Securities must
be
paid on the dates payable (after giving effect to any Extension Period) to
the
extent that the Trust has funds available for the payment of such distributions
in the Property Account of the Trust. The Trust’s funds available for
Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. The payment of Distributions out
of moneys held by the Trust is guaranteed by the Guarantor pursuant to the
Guarantee.
The
Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate to:
(Insert
assignee’s social security or tax identification number)
(Insert
address and zip code of assignee) and irrevocably appoints
agent
to
transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or
her.
Date:
Signature:
(Sign
exactly as your name appears on
the other side of this Capital Security Certificate)
1
Signature must be
guaranteed by an “eligible guarantor institution” that is a bank, stockbroker,
savings and loan association or credit union meeting the requirements of
the
Security registrar, which requirements include membership or participation
in
the Securities Transfer Agents Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Security registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT
A-2
FORM
OF
COMMON SECURITY CERTIFICATE
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EXEMPTION FROM REGISTRATION.
THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1 OF
THE DECLARATION.
Certificate
Number
C-1 387
Common Securities
October 31,
2007
Certificate
Evidencing Fixed/Floating Rate Common Securities
of
CMTV
Statutory Trust I
CMTV
Statutory Trust I, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Community Bancorp. (the “Holder”)
is the registered owner of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust (the “Common
Securities”). The Common Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities shall in all respects
be
subject to, the provisions of the Amended and Restated Declaration of Trust
of
the Trust dated as of October 31, 2007, among Richard C. White,
Alan A. Wing and Stephen P. Marsh, as Administrators, Wilmington Trust
Company, as Delaware Trustee, Wilmington Trust Company, as Institutional
Trustee, Community Bancorp., as Sponsor, and the holders from time to time
of
undivided beneficial interest in the assets of the Trust including the
designation of the terms of the Common Securities as set forth in Annex I to
such amended and restated declaration, as the same may be amended from time
to
time (the “Declaration”). Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to the Holder without charge upon written request
to
the Sponsor at its principal place of business.
As
set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of Holders of Common Securities to payment in respect
of
Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Capital
Securities.
Upon
receipt of this Certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Common Security is governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to principles of conflict of
laws.
IN
WITNESS WHEREOF, the Trust has duly executed this certificate.
CMTV
STATUTORY TRUST I
By:
Name:
Title:
Administrator
[FORM
OF
REVERSE OF COMMON SECURITY]
Distributions
payable on each Common Security will be payable at an annual rate equal to
7.56%
beginning on (and including) the date of original issuance and ending on (but
excluding) the Distribution Payment Date in December 2012 and at an annual
rate
for each successive period beginning on (and including) the Distribution Payment
Date in December 2012, and each succeeding Distribution Payment Date, and ending
on (but excluding) the next succeeding Distribution Payment Date (each a
“Distribution Period”), equal to 3-Month LIBOR, determined as described below,
plus 2.85% (the “Coupon Rate”), applied to the stated liquidation amount of
$1,000.00 per Common Security, such rate being the rate of interest payable
on
the Debentures to be held by the Institutional Trustee. Distributions in arrears
will bear interest thereon compounded quarterly at the Distribution Rate (to
the
extent permitted by applicable law). The term “Distributions” as used
herein includes cash distributions and any such compounded distributions unless
otherwise noted. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available
therefor. As used herein, “Determination Date” means the date that is
two London Banking Days (i.e., a business day in which dealings in deposits
in
U.S. dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period. The amount of the
Distribution payable (i) for any Distribution Period commencing on or after
the date of original issuance but before the Distribution Payment Date in
December 2012 will be computed on the basis of a 360-day year of twelve 30-day
months, and (ii) for the Distribution Period commencing on the Distribution
Payment Date in December 2012 and each succeeding Distribution Period will
be
calculated by applying the Distribution Rate to the stated liquidation amount
outstanding at the commencement of the Distribution Period and multiplying
each
such number by the actual number of days in the Distribution Period concerned
divided by 360.
“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Debenture Trustee in the
following order of priority: (i) the rate (expressed as a percentage
per annum) for U.S. dollar deposits having a three-month maturity that appears
on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the related
Determination Date (“Reuters Page LIBOR01” means the display designated as
“LIBOR01” on Reuters or such other page as may replace Reuters Page LIBOR01 on
that service or such other service or services as may be nominated by the
British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits); (ii) if
such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in
the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London time)
on
such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; (iii) if fewer
than two such quotations are provided as requested in clause (ii) above, the
Debenture Trustee will request four major New York City banks to provide such
banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on
such
Determination Date. If at least two such quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer
than two such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the
Distribution Period immediately preceding such current Distribution
Period. If the rate for U.S. dollar deposits having a three-month
maturity that initially appears on Reuters Page LIBOR01 as of 11:00 a.m. (London
time) on the related Determination Date is superseded on the Reuters Page
LIBOR01 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will
be
the applicable 3-Month LIBOR for such Determination Date.
The
Distribution Rate for any Distribution Period will at no time be higher than
the
maximum rate then permitted by New York law as the same may be modified by
United States law.
All
percentages resulting from any calculations on the Common Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of
a percentage point, with five one-millionths of a percentage
point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655%
(or .0987655), and all dollar amounts used in or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being
rounded upward)).
Except
as
otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and
December 15 of each year or if any such day is not a Business Day, then the
next succeeding Business Day (each such day, a “Distribution Payment Date”) (it
being understood that interest accrues for any such non-Business Day during
the
applicable Distribution Period, beginning on or after December 15, 2012),
commencing on the Distribution Payment Date in December 2007. The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures, so long as no Acceleration Event of Default has occurred
and
is continuing, by extending the interest payment period on the Debentures for
up
to 20 consecutive quarterly periods (each an “Extension Period”) at any
time and from time to time on the Debentures, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable. During any Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest will accrue
at
an annual rate equal to the Distribution Rate in effect for each such Extension
Period, compounded quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by law (such
interest referred to herein as “Additional Interest”). No Extension Period may
end on a date other than a Distribution Payment Date. At the end of
any such Extension Period, the Debenture Issuer shall pay all interest then
accrued and unpaid on the Debentures (together with Additional Interest
thereon); provided, however, that no Extension Period may extend
beyond the Maturity Date. Prior to the termination of any Extension
Period, the Debenture Issuer may further extend such period, provided that
such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the
Maturity Date. Upon the termination of any Extension Period and upon the payment
of all accrued and unpaid interest and Additional Interest, the Debenture Issuer
may commence a new Extension Period, subject to the foregoing requirements.
No
interest or Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest. During any Extension Period, Distributions on
the Common Securities shall be deferred for a period equal to the Extension
Period. If Distributions are deferred, the Distributions due shall be
paid on the date that the related Extension Period terminates, to Holders of
the
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. Distributions on the Securities must
be
paid on the dates payable (after giving effect to any Extension Period) to
the
extent that the Trust has funds available for the payment of such distributions
in the Property Account of the Trust. The Trust’s funds available for
Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer.
The
Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Common Security Certificate
to:
(Insert
assignee’s social security or tax identification number)
(Insert
address and zip code of assignee) and irrevocably appoints
agent
to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or
her.
Date:
Signature:
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
Signature:
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
Signature
Guarantee2
2
Signature must be
guaranteed by an “eligible guarantor institution” that is a bank, stockbroker,
savings and loan association or credit union, meeting the requirements of
the
Security registrar, which requirements include membership or participation
in
the Securities Transfer Agents Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Security registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT
B
SPECIMEN
OF INITIAL DEBENTURE
(See
Document No. 17)
EXHIBIT
C
PLACEMENT
AGREEMENT
(See
Document No. 1)
EX-10.1
4
guaranteeagreement.htm
GUARANTEE AGREEMENT
guaranteeagreement.htm
Exhibit
10.1
_________________________________________________
GUARANTEE
AGREEMENT
by
and between
COMMUNITY
BANCORP.
and
WILMINGTON
TRUST COMPANY
Dated
as of October 31, 2007
_________________________________________________
GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (this
“Guarantee”), dated as of October 31, 2007, is executed and delivered by
Community Bancorp., a Vermont corporation (the “Guarantor”), and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of CMTV Statutory Trust I, a
Delaware statutory trust (the “Issuer”).
WHEREAS,
pursuant to an Amended and
Restated Declaration of Trust (the “Declaration”), dated as of the date hereof
among Wilmington Trust Company, not in its individual capacity but solely as
institutional trustee, the administrators of the Issuer named therein, the
Guarantor, as sponsor, and the holders from time to time of undivided beneficial
interests in the assets of the Issuer, the Issuer is issuing on the date hereof
those undivided beneficial interests, having an aggregate liquidation amount
of
$12,500,000.00 (the “Capital Securities”); and
WHEREAS,
as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Guarantee, to pay to the Holders of Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms
and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the purchase by each Holder of the Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1. Definitions
and Interpretation.
In
this
Guarantee, unless the context otherwise requires:
(a) capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a
term
defined anywhere in this Guarantee has the same meaning throughout;
(c) all
references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;
(d) all
references in this Guarantee to “Articles” or “Sections” are to Articles or
Sections of this Guarantee, unless otherwise specified;
(e) terms
defined in the Declaration as at the date of execution of this Guarantee have
the same meanings when used in this Guarantee, unless otherwise defined in
this
Guarantee or unless the context otherwise requires; and
(f) a
reference to the singular includes the plural and vice versa.
“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities
Act of 1933, as amended, or any successor rule thereunder.
“Beneficiaries”
means any Person to whom the Issuer is or hereafter becomes indebted or
liable.
“Capital
Securities” has the meaning set forth in the recitals to this
Guarantee.
“Common
Securities” means the common securities issued by the Issuer to the
Guarantor pursuant to the Declaration.
“Corporate
Trust Office” means the office of the Guarantee Trustee at which the
corporate trust business of the Guarantee Trustee shall, at any particular
time,
be principally administered, which office at the date of execution of this
Guarantee is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600, Attention: Corporate
Trust Administration.
“Covered
Person” means any Holder of Capital Securities.
“Debentures”
means the debt securities of the Guarantor designated the Fixed/Floating Rate
Junior Subordinated Deferrable Interest Debentures due 2037 held by the
Institutional Trustee (as defined in the Declaration) of the
Issuer.
“Declaration
Event of Default” means an “Event of Default” as defined in the
Declaration.
“Event
of Default” has the meaning set forth in Section 2.4(a).
“Guarantee
Payments” means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid
or
made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) which are required to be paid on such Capital
Securities to the extent the Issuer shall have funds available therefor,
(ii) the Redemption Price to the extent the Issuer has funds available
therefor, with respect to any Capital Securities called for redemption by the
Issuer, (iii) the Special Redemption Price to the extent the Issuer has
funds available therefor, with respect to Capital Securities redeemed upon
the
occurrence of a Special Event, and (iv) upon a voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Issuer (other than
in
connection with the distribution of Debentures to the Holders of the Capital
Securities in exchange therefor as provided in the Declaration), the lesser
of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the “Liquidation
Distribution”).
“Guarantee
Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms
of
this Guarantee and thereafter means each such Successor Guarantee
Trustee.
“Guarantor”
means Community Bancorp. and each of its successors and assigns.
“Holder”
means any holder, as registered on the books and records of the Issuer, of
any
Capital Securities; provided, however, that, in determining
whether the Holders of the requisite percentage of Capital Securities have
given
any request, notice, consent or waiver hereunder, “Holder” shall not include the
Guarantor or any Affiliate of the Guarantor.
“Indemnified
Person” means the Guarantee Trustee, any Affiliate of the Guarantee Trustee,
or any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Guarantee
Trustee.
“Indenture”
means the Indenture dated as of the date hereof between the Guarantor and
Wilmington Trust Company, not in its individual capacity but solely as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are
to
be issued to the institutional trustee of the Issuer.
“Issuer”
has the meaning set forth in the opening paragraph to this
Guarantee.
“Liquidation
Distribution” has the meaning set forth in the definition of “Guarantee
Payments” herein.
“Majority
in liquidation amount of the Capital Securities” means Holder(s) of
outstanding Capital Securities, voting together as a class, but separately
from
the holders of Common Securities, of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon
which the voting percentages are determined) of all Capital Securities then
outstanding.
“Obligations”
means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Issuer other than obligations of the Issuer to pay to holders
of any Trust Securities the amounts due such holders pursuant to the terms
of
the Trust Securities.
“Officer’s
Certificate” means, with respect to any Person, a certificate signed by one
Authorized Officer of such Person. Any Officer’s Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a
statement that the officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a
brief
statement of the nature and scope of the examination or investigation undertaken
by the officer in rendering the Officer’s Certificate;
(c) a
statement that the officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of the officer, such condition or
covenant has been complied with.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“Redemption
Price” has the meaning set forth in the Indenture.
“Responsible
Officer” means, with respect to the Guarantee Trustee, any officer within
the Corporate Trust Office of the Guarantee Trustee including any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any
other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“Special
Event” has the meaning set forth in the Indenture.
“Special
Redemption Price” has the meaning set forth in the Indenture.
“Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.
“Trust
Securities” means the Common Securities and the Capital
Securities.
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF
GUARANTEE
TRUSTEE
Section
2.1. Powers
and Duties of the Guarantee Trustee.
(a) This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Capital Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Capital Securities exercising his
or
her rights pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If
an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce
this
Guarantee for the benefit of the Holders of the Capital Securities.
(c) The
Guarantee Trustee, before the occurrence of any Event of Default and after
curing all Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee, and no implied
covenants shall be read into this Guarantee against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been
waived pursuant to Section 2.4) and is actually known to a Responsible
Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such
of
the rights and powers vested in it by this Guarantee, and use the same degree
of
care and skill in its exercise thereof, as a prudent person would exercise
or
use under the circumstances in the conduct of his or her own
affairs.
(d) No
provision of this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) prior
to
the occurrence of any Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:
(A) the
duties and obligations of the Guarantee Trustee shall be determined solely
by
the express provisions of this Guarantee, and the Guarantee Trustee shall not
be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B) in
the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon any certificates or opinions furnished
to
the Guarantee Trustee and conforming to the requirements of this Guarantee;
but
in the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee;
(ii) the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the Holders of not less than a Majority in liquidation amount of the Capital
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or relating to the exercise
of any trust or power conferred upon the Guarantee Trustee under this Guarantee;
and
(iv) no
provision of this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the
terms
of this Guarantee or security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured
to
it.
Section
2.2. Certain
Rights of Guarantee Trustee.
(a) Subject
to the provisions of Section 2.1:
(i) The
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by
the
proper party or parties.
(ii) Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.
(iii) Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence
is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any re-recording, refiling or re-registration
thereof).
(v) The
Guarantee Trustee may consult with counsel of its selection, and the advice
or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) The
Guarantee Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided, however, that nothing contained in this Section
2.2(a)(vi) shall relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in it
by
this Guarantee.
(vii) The
Guarantee Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
with
due care by it hereunder.
(ix) Any
action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Capital Securities, and the signature of the Guarantee Trustee
or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with any
of
the terms and provisions of this Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee’s or its agent’s taking such
action.
(x) Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the Capital
Securities, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(xi) The
Guarantee Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Guarantee.
(b) No
provision of this Guarantee shall be deemed to impose any duty or obligation
on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which
it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or acts
or
to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Guarantee Trustee shall be construed to
be a
duty.
Section
2.3. Not
Responsible for Recitals or Issuance of
Guarantee.
The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as
to the validity or sufficiency of this Guarantee.
Section
2.4. Events
of Default; Waiver.
(a) An
Event
of Default under this Guarantee will occur upon the failure of the Guarantor
to
perform any of its payment or other obligations hereunder.
(b) The
Holders of a Majority in liquidation amount of the Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease
to exist, and shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default
or
Event of Default or impair any right consequent thereon.
Section
2.5. Events
of Default; Notice.
(a) The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Capital Securities and the Guarantor, notices of all Events of Default actually
known to a Responsible Officer of the Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided,
however, that the Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Guarantee Trustee
in
good faith determines that the withholding of such notice is in the interests
of
the Holders of the Capital Securities.
(b) The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice from the
Guarantor or a Holder of the Capital Securities (except in the case of a payment
default), or a Responsible Officer of the Guarantee Trustee charged with the
administration of this Guarantee shall have obtained actual knowledge
thereof.
ARTICLE
III
GUARANTEE
TRUSTEE
Section
3.1. Guarantee
Trustee; Eligibility.
(a) There
shall at all times be a Guarantee Trustee which shall:
(i) not
be an
Affiliate of the Guarantor, and
(ii) be
a
corporation organized and doing business under the laws of the United States
of
America or any State or Territory thereof or of the District of Columbia, or
Person authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then,
for the purposes of this Section 3.1(a)(ii), the combined capital and surplus
of
such corporation shall be deemed to be its combined capital and surplus as
set
forth in its most recent report of condition so published.
(b) If
at any
time the Guarantee Trustee shall cease to be eligible to so act under
Section 3.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 3.2(c).
(c) If
the
Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to this Guarantee.
Section
3.2. Appointment,
Removal and Resignation of Guarantee Trustee.
(a) Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b) The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until
a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed
by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and
has
accepted such appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If
no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within 60 days after delivery of an
instrument of removal or resignation, the Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of
a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f) Upon
termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3
accrued to the date of such termination, removal or resignation.
ARTICLE
IV
GUARANTEE
Section
4.1. Guarantee.
(a) The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by
the
Issuer), as and when due, regardless of any defense (except the defense of
payment by the Issuer), right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor’s obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
(b) The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer
and
in the event any such Obligation is not so assumed, subject to the terms and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any and
all
Obligations to such Beneficiaries. This Guarantee is intended to be
for the benefit of, and to be enforceable by, all such Beneficiaries, whether
or
not such Beneficiaries have received notice hereof.
Section
4.2. Waiver
of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
Section
4.3. Obligations
Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term
or
condition relating to the Capital Securities to be performed or observed by
the
Issuer;
(b) the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Special Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of or in connection with, the Capital Securities (other than an
extension of time for payment of Distributions, Redemption Price, Special
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Debentures or any
extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred
on
the Holders pursuant to the terms of the Capital Securities, or any action
on
the part of the Issuer granting indulgence or extension of any
kind;
(d) the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any
invalidity of, or defect or deficiency in, the Capital Securities;
(f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g) any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this
Section 4.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain consent
of,
the Guarantor with respect to the happening of any of the
foregoing.
Section
4.4. Rights
of Holders.
(a) The
Holders of a Majority in liquidation amount of the Capital Securities have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee; provided, however, that (subject to
Section 2.1) the Guarantee Trustee shall have the right to decline to
follow any such direction if the Guarantee Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Guarantee Trustee in good faith by its board of directors or trustees,
executive committees or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Guarantee Trustee in personal liability.
(b) Any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy
to require that any such action be brought first against the Issuer, the
Guarantee Trustee or any other Person before so proceeding directly against
the
Guarantor.
Section
4.5. Guarantee
of Payment.
This
Guarantee creates a guarantee of payment and not of collection.
Section
4.6. Subrogation.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Issuer in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions
of
law) be entitled to enforce or exercise any right that it may acquire by way
of
subrogation or any indemnity, reimbursement or other agreement, in all cases
as
a result of payment under this Guarantee, if, after giving effect to any such
payment, any amounts are due and unpaid under this Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section
4.7. Independent
Obligations.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Capital Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
Section
4.8. Enforcement
by a Beneficiary.
A
Beneficiary may enforce the obligations of the Guarantor contained in Section
4.1(b) directly against the Guarantor and the Guarantor waives any right or
remedy to require that any action be brought against the Issuer or any other
person or entity before proceeding against the Guarantor. The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any rights that it may acquire by way of subrogation
or
any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if at the time of any such payment, and after
giving effect to such payment, any amounts are due and unpaid under this
Guarantee.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
Section
5.1. Limitation
of Transactions.
So
long
as any Capital Securities remain outstanding, if (a) there shall have
occurred and be continuing an Event of Default or a Declaration Event of Default
or (b) the Guarantor shall have selected an Extension Period as provided in
the Declaration and such period, or any extension thereof, shall have commenced
and be continuing, then the Guarantor shall not and shall not permit any
Affiliate to (x) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of
the Guarantor’s or such Affiliate’s capital stock (other than payments of
dividends or distributions to the Guarantor or payments of dividends from direct
or indirect subsidiaries of the Guarantor to their parent corporations, which
also shall be direct or indirect subsidiaries of the Guarantor) or make any
guarantee payments with respect to the foregoing or (y) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Guarantor or any Affiliate that rank pari passu
in all respects with or junior in interest to the Debentures (other
than,
with respect to clauses (x) and (y) above, (i) repurchases, redemptions or
other acquisitions of shares of capital stock of the Guarantor in connection
with any employment contract, benefit plan or other similar arrangement with
or
for the benefit of one or more employees, officers, directors or consultants,
in
connection with a dividend reinvestment or stockholder stock purchase plan
or in
connection with the issuance of capital stock of the Guarantor (or securities
convertible into or exercisable for such capital stock) as consideration in
an
acquisition transaction entered into prior to the occurrence of the Event of
Default, Declaration Event of Default or Extension Period, as applicable,
(ii) as a result of any exchange or conversion of any class or series of
the Guarantor’s capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor’s capital stock or of any
class or series of the Guarantor’s indebtedness for any class or series of the
Guarantor’s capital stock, (iii) the purchase of fractional interests in
shares of the Guarantor’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(iv) any declaration of a dividend in connection with any stockholders’
rights plan, or the issuance of rights, stock or other property under any
stockholders’ rights plan, or the redemption or repurchase of rights pursuant
thereto, (v) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock
and any cash payments in lieu of fractional shares issued in connection
therewith, (vi) payments of principal or interest on debt securities or
payments of cash dividends or distributions on any capital stock issued by
an
Affiliate that is not, in whole or in part, a subsidiary of the Guarantor (or
any redemptions, repurchases or liquidation payments on such stock or
securities), or (vii) payments under this Guarantee).
Section
5.2. Ranking.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will
rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their
acceptance thereof, each Holder of Capital Securities agrees to the foregoing
provisions of this Guarantee and the other terms set forth herein.
The
right
of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary’s liquidation or reorganization or
otherwise is subject to the prior claims of creditors of that subsidiary, except
to the extent the Guarantor may itself be recognized as a creditor of that
subsidiary. Accordingly, the Guarantor’s obligations under this
Guarantee will be effectively subordinated to all existing and future
liabilities of the Guarantor’s subsidiaries, and claimants should look only to
the assets of the Guarantor for payments hereunder. This Guarantee
does not limit the incurrence or issuance of other secured or unsecured debt
of
the Guarantor, including Senior Indebtedness of the Guarantor, under any
indenture that the Guarantor may enter into in the future or
otherwise.
ARTICLE
VI
TERMINATION
Section
6.1. Termination.
This
Guarantee shall terminate as to the Capital Securities (i) upon full
payment of the Redemption Price or Special Redemption Price of all Capital
Securities then outstanding, (ii) upon the distribution of all of the
Debentures to the Holders of all of the Capital Securities or (iii) upon
full payment of the amounts payable in accordance with the Declaration upon
dissolution of the Issuer. This Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Capital Securities must restore payment of any sums paid under the Capital
Securities or under this Guarantee.
ARTICLE
VII
INDEMNIFICATION
Section
7.1. Exculpation.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or
by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person’s negligence or willful
misconduct with respect to such acts or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person
as
to matters the Indemnified Person reasonably believes are within such other
Person’s professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Capital Securities might properly be paid.
Section
7.2. Indemnification.
(a) The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on the part of
the
Indemnified Person, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including, but not limited
to,
the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person’s powers or duties hereunder. The obligation to
indemnify as set forth in this Section 7.2 shall survive the resignation or
removal of the Guarantee Trustee and the termination of this
Guarantee.
(b) Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of
the commencement of any action, such Indemnified Person will, if a claim in
respect thereof is to be made against the Guarantor under this Section 7.2,
notify the Guarantor in writing of the commencement thereof; but the failure
so
to notify the Guarantor (i) will not relieve the Guarantor from liability
under paragraph (a) above unless and to the extent that the Guarantor did
not otherwise learn of such action and such failure results in the forfeiture
by
the Guarantor of substantial rights and defenses and (ii) will not, in any
event, relieve the Guarantor from any obligations to any Indemnified Person
other than the indemnification obligation provided in paragraph (a)
above. The Guarantor shall be entitled to appoint counsel of the
Guarantor’s choice at the Guarantor’s expense to represent the Indemnified
Person in any action for which indemnification is sought (in which case the
Guarantor shall not thereafter be responsible for the fees and expenses of
any
separate counsel retained by the Indemnified Person or Persons except as set
forth below); provided, however, that such counsel shall be
reasonably satisfactory to the Indemnified Person. Notwithstanding
the Guarantor’s election to appoint counsel to represent the Guarantor in an
action, the Indemnified Person shall have the right to employ separate counsel
(including local counsel), and the Guarantor shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the Guarantor to represent the Indemnified Person would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it and/or other
Indemnified Person(s) which are different from or additional to those available
to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or
(iv) the Guarantor shall authorize the Indemnified Person to employ
separate counsel at the expense of the Guarantor. The Guarantor will
not, without the prior written consent of the Indemnified Persons, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Persons are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Person from all liability arising out of such claim, action,
suit or proceeding.
Section
7.3. Compensation;
Reimbursement of Expenses.
The
Guarantor agrees:
(a) to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except
as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or
made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.
For
purposes of clarification, this Section 7.3 does not contemplate the
payment by the Guarantor of acceptance or annual administration fees owing
to
the Guarantee Trustee for services to be provided by the Guarantee Trustee
under
this Guarantee or the fees and expenses of the Guarantee Trustee’s counsel in
connection with the closing of the transactions contemplated by this
Guarantee. The provisions of this Section 7.3 shall survive the
resignation or removal of the Guarantee Trustee and the termination of this
Guarantee.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1. Successors
and Assigns.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then
outstanding. Except in connection with any merger or consolidation of
the Guarantor with or into another entity or any sale, transfer or lease of
the
Guarantor’s assets to another entity, in each case, to the extent permitted
under the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Guarantee without the prior approval of the Holders
of at
least a Majority in liquidation amount of the Capital Securities.
Section
8.2. Amendments.
Except
with respect to any changes that do not adversely affect the rights of Holders
of the Capital Securities in any material respect (in which case no consent
of
Holders will be required), this Guarantee may be amended only with the prior
approval of the Holders of not less than a Majority in liquidation amount of
the
Capital Securities. The provisions of the Declaration with respect to
amendments thereof apply to the giving of such approval.
Section
8.3. Notices.
All
notices provided for in this Guarantee shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:
(a) If
given
to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to
the
Holders of the Capital Securities and the Guarantor):
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention: Corporate
Trust Administration
Telecopy: 302-636-4140
(b) If
given
to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee):
Community
Bancorp.
4811
U.S.
Route #5
Derby,
Vermont 05829
Attention: Stephen P.
Marsh
Telecopy: 802-334-3484
(c) If
given
to any Holder of the Capital Securities, at the address set forth on the books
and records of the Issuer.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
Section
8.4. Benefit.
This
Guarantee is solely for the benefit of the Beneficiaries and, subject to Section
2.1(a), is not separately transferable from the Capital Securities.
Section
8.5. Governing
Law.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Section
8.6. Counterparts.
This
Guarantee may be executed in one or more counterparts, each of which shall
be an
original, but all of which taken together shall constitute one and the same
instrument.
Section
8.7. Separability.
In
case
one or more of the provisions contained in this Guarantee shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Guarantee, but this Guarantee shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein.
Signatures
appear on the following page
THIS
GUARANTEE is executed as of the day and year first above written.
COMMUNITY
BANCORP., as Guarantor
By:
|
/s/ Richard C. White
|
Name:
|
Richard C. White |
Title:
|
Chairman & CEO |
WILMINGTON
TRUST COMPANY, as Guarantee Trustee
By:
|
/s/ W. T. Morris, II |
Name:
|
W. Thomas Morris, II |
Title:
|
Assistant Vice President |
EX-10.2
5
placementagreement.htm
PLACEMENT AGREEMENT
placementagreement.htm
Exhibit
10.2
COMMUNITY
BANCORP.
12,500
Capital Securities
Fixed/Floating
Rate Capital Securities
(Liquidation
Amount $1,000.00 per Capital Security)
PLACEMENT
AGREEMENT
____________________
October 30,
2007
FTN
Financial Capital Markets
845
Crossover Lane, Suite 150
Memphis,
Tennessee 38117
Keefe,
Bruyette & Woods, Inc.
787
7th
Avenue
4th
Floor
New
York,
New York 10019
Ladies
and Gentlemen:
Community
Bancorp., a Vermont corporation (the “Company”), and its financing subsidiary,
CMTV Statutory Trust I, a Delaware statutory trust (the “Trust,” and
hereinafter together with the Company, the “Offerors”), hereby confirm their
agreement (this “Agreement”) with you as placement agents (the “Placement
Agents”), 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) 12,500 of the Trust’s Fixed/Floating Rate Capital
Securities, with a liquidation amount of $1,000.00 per capital security (the
“Capital Securities”), to First Tennessee Bank National Association (the
“Purchaser”) pursuant to the terms of a 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 and incorporated herein by this reference.
1.2. Operative
Agreements.
The
Capital 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 (“WTC”), as trustee (the “Guarantee Trustee”), for the benefit
from time to time of the holders of the Capital Securities. The
entire proceeds from the sale by the Trust to the holders of the Capital
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 $12,887,000.00 in principal amount of the
Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures (the
“Debentures”) of the Company. The Capital Securities and the Common
Securities for the Trust shall be issued pursuant to an Amended and Restated
Declaration of Trust among WTC, as Delaware trustee (the “Delaware Trustee”),
WTC, as institutional trustee (the “Institutional Trustee”), the Administrators
named therein, and the Company, to be dated as of the Closing Date and in
substantially the form heretofore delivered to the Placement Agents (the “Trust
Agreement”). The Debentures shall be issued pursuant to an Indenture
(the “Indenture”), to be dated as of the Closing Date, between the Company and
WTC, 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.”
1.3. Rights
of Purchaser.
The
Capital Securities shall be offered and sold by the Trust directly to the
Purchaser without registration of any of the Capital Securities, the Debentures
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 Agents and the
Purchaser under 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 Agents 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, and until such time as the same is no longer required
under the applicable requirements of the Securities Act, the Capital Securities
and Debentures certificates shall each contain a legend as required pursuant
to
any of the Operative Documents.
Section
2. Purchase
of Capital 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 Agents), the Offerors hereby grant
to the Placement Agents the exclusive right to arrange for the sale of the
Capital Securities to the Purchaser at a purchase price of $1,000.00 per Capital
Security.
2.2. Subscription
Agreement.
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 Agents.
2.3. Closing
and Delivery of Payment.
2.3.1. Closing;
Closing Date.
The
sale
and purchase of the Capital Securities by the Offerors to the Purchaser shall
take place at a closing (the “Closing”) at the offices of Lewis, Rice &
Fingersh, L.C., at 10:00 a.m. (St. Louis time) on October 31,
2007, or such other business day as may be agreed upon by the Offerors and
the
Placement Agents (the “Closing Date”); provided, however, that in
no event shall the Closing Date occur later than November 7, 2007 unless
consented to by the Purchaser. Payment by the Purchaser shall be
payable in the manner set forth in the Subscription Agreement and shall be
made
prior to or on the Closing Date.
2.3.2. Delivery.
The
certificate for the Capital Securities shall be in definitive form, registered
in the name of the Purchaser, or the Purchaser’s designee, and in the aggregate
amount of the Capital Securities purchased by the Purchaser.
2.3.3. Transfer
Agent.
The
Offerors shall deposit the certificate representing the Capital Securities
with
the Institutional Trustee or other appropriate party prior to the Closing
Date.
2.4. Costs
and Expenses.
Whether
or not this Agreement is terminated or the sale of the Capital Securities is
consummated, the Company hereby covenants and agrees that it shall pay or cause
to be paid (directly or by reimbursement) all reasonable costs and expenses
incident to the performance of the obligations of the Offerors under this
Agreement, including all fees, expenses and disbursements of counsel and
accountants for the Offerors; all reasonable expenses incurred by the Offerors
incident to the preparation, execution and delivery of the Trust Agreement,
the
Indenture, and the Guarantee; and all other reasonable costs and expenses
incident to the performance of the obligations of the Company hereunder and
under the Trust 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 Agents or if the Closing shall
not have occurred on or before 10:00 a.m. (St. Louis time) on
November 7, 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, 7.5 and 9 shall not be so relieved and
shall continue in full force and effect.
Section
3. Closing
Conditions.
The
obligations of the Purchaser and the Placement Agents on the Closing Date shall
be subject to the accuracy, at and as of the Closing Date, of the
representations and warranties of the Offerors contained in this Agreement,
to
the accuracy, at and as of the Closing Date, of the statements of the Offerors
made in any certificates pursuant to this Agreement, to the performance by
the
Offerors of their respective obligations under this Agreement, to compliance,
at
and as of the Closing Date, by the Offerors with their respective agreements
herein contained, and to the following further conditions:
3.1. Opinions
of Counsel.
On
the
Closing Date, the Placement Agents shall have received the following favorable
opinions, each dated as of the Closing Date: (a) from Primmer
Piper Eggleston & Crammer PC, counsel for the Offerors and
addressed to the Purchaser, the Placement Agents and WTC in substantially the
form set forth on Exhibit B-1 attached hereto and incorporated
herein by this reference, (b) from Richards, Layton & Finger, P.A.,
special Delaware counsel to the Offerors and addressed to the Purchaser, the
Placement Agents and the Offerors, in substantially the form set forth on
Exhibit B-2 attached hereto and incorporated herein by this
reference and (c) from Lewis, Rice & Fingersh, L.C., special tax
counsel to the Offerors, and addressed to the Placement Agents and the Offerors,
addressing the items set forth on Exhibit B-3 attached hereto and
incorporated herein by this reference, subject to the receipt by Lewis, Rice
& Fingersh, L.C. of a representation letter from the Company in the form set
forth in Exhibit B-3 completed in a manner reasonably satisfactory
to Lewis, Rice & Fingersh, L.C. (collectively, the “Offerors’ Counsel
Opinions”). In rendering the Offerors’ Counsel Opinions, counsel to
the Offerors may rely as to factual matters upon certificates or other documents
furnished by officers, directors and trustees of the Offerors (copies of which
shall be delivered to the Placement Agents and the Purchaser) and by government
officials, and upon such other documents as counsel to the Offerors may, in
their reasonable opinion, deem appropriate as a basis for the Offerors’ Counsel
Opinions. Counsel to the Offerors may specify the jurisdictions in
which they are admitted to practice and that they are not admitted to practice
in any other jurisdiction and are not experts in the law of any other
jurisdiction. If the Offerors’ counsel is not admitted to practice in
the State of New York, the opinion of Offerors’ counsel may assume, for purposes
of the opinion, that the laws of the State of New York are substantively
identical, in all respects material to the opinion, to the internal laws of
the
state in which such counsel is admitted to practice. Such Offerors’
Counsel Opinions shall not state that they are to be governed or qualified
by,
or that they are otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
3.2. Officer’s
Certificate.
At
the
Closing Date, the Purchaser and the Placement Agents shall have received
certificates from an authorized officer of the Company, dated as of the Closing
Date, stating that (i) the representations and warranties of the Offerors
set forth in Section 5 hereof are true and correct as of the Closing Date
and that the Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to the Closing
Date, (ii) since the date of this Agreement the Offerors have not incurred
any liability or obligation, direct or contingent, or entered into any material
transactions, other than in the ordinary course of business, which is material
to the Offerors, and (iii) covering such other matters as the Placement
Agents may reasonably request.
3.3. Administrator’s
Certificate.
At
the
Closing Date, the Purchaser and the Placement Agents shall have received a
certificate of one or more Administrators of the Trust, dated as of the Closing
Date, stating that the representations and warranties of the Trust set forth
in
Section 5 are true and correct as of the Closing Date and that the Trust
has complied with all agreements and satisfied all conditions on its part to
be
performed or satisfied at or prior to the Closing Date.
3.4. Purchase
Permitted by Applicable Laws; Legal
Investment.
The
purchase of and payment for the Capital 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 Agents to any penalty or, in the
reasonable judgment of the Purchaser and the Placement Agents, 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 Agents are subject.
3.5. 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.
3.6. Information.
Prior
to
or on the Closing Date, the Offerors shall have furnished to the Placement
Agents such further information, certificates, opinions and documents addressed
to the Purchaser and the Placement Agents, which the Placement Agents may
reasonably request, including, without limitation, a complete set of the
Operative Documents or any other documents or certificates required by this
Section 3; and all proceedings taken by the Offerors in connection with the
issuance, offer and sale of the Capital Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Placement
Agents.
If
any
condition specified in this Section 3 shall not have been fulfilled when
and as required in this Agreement, or if any of the opinions or certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Placement Agents, this Agreement
may
be terminated by the Placement Agents by notice to the Offerors at any time
at
or prior to the Closing Date. Notice of such termination shall be
given to the Offerors in writing or by telephone or facsimile confirmed in
writing.
Section
4. Conditions
to the Offerors’ Obligations.
The
obligations of the Offerors to sell the Capital Securities to the Purchaser
and
consummate the transactions contemplated by this Agreement shall be subject
to
the accuracy, at and as of the Closing Date, of the representations and
warranties of the Placement Agents contained in this Agreement and to the
following further conditions:
4.1. Executed
Agreement.
The
Offerors shall have received from the Placement Agents an executed copy of
this
Agreement.
4.2. Fulfillment
of Other Obligations.
The
Placement Agents shall have fulfilled all of their other obligations and duties
required to be fulfilled under this Agreement prior to or at the
Closing.
Section
5. Representations
and Warranties of the Offerors.
Except
as
set forth on the Disclosure Schedule (as defined in Section 11.1) attached
hereto, if any, the Offerors jointly and severally represent and warrant to
the
Placement Agents and the Purchaser as of the date hereof and as of the Closing
Date as follows:
5.1. Securities
Law Matters.
(a)
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 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 Capital Securities, the
Guarantee or the Debentures (collectively, the “Securities”) or any other
securities to be issued, or which may be issued, by the Purchaser.
(b)
Neither
the Company nor the Trust, nor any of their Affiliates, nor any person acting
on
its or their behalf has (i) other than the Placement Agents,
offered for sale or solicited offers to purchase the Securities, or
(ii) engaged in any form of offering, general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of any of the Securities.
(c)
The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the Securities Act.
(d)
Neither
the Company nor the Trust is or, after giving effect to the offering and sale
of
the Capital Securities and the consummation of the transactions described in
this Agreement, 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 of 1940, as amended (the “Investment Company Act”),
without regard to Section 3(c) of the Investment Company Act.
(e)
Neither
the Company nor the Trust has paid or agreed to pay to any person or entity
(other than the Placement Agents) any compensation for soliciting another to
purchase any of the Securities.
5.2. Organization,
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 (the “Statutory Trust Act”) with
the 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. 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 Trust. The
Trust is not a party to or otherwise bound by any agreement other than the
Operative Documents. The Trust is and will, under current law, be
classified for federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
5.3. Trust
Agreement.
The
Trust
Agreement has been duly authorized by the Company and, on the Closing Date,
will
have been duly executed and delivered by the Company and the Administrators
of
the Trust, and, assuming due authorization, execution and delivery by the
Delaware Trustee and the Institutional Trustee, will be a valid and binding
obligation of the Company and such Administrators, enforceable against them
in
accordance with its terms, subject to (a) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation and other
laws
relating to or affecting creditors’ rights generally, and (b) general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) (“Bankruptcy and Equity”). Each of
the Administrators of the Trust is an employee or a director of the Company
or
of a financial institution subsidiary of the Company and has been duly
authorized by the Company to execute and deliver the Trust
Agreement.
5.4. 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 valid and binding obligation of the Company enforceable
against it in accordance with its terms, subject to Bankruptcy and
Equity.
5.5. Capital
Securities and Common Securities.
The
Capital Securities and the Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered against payment therefor on
the
Closing Date to the Purchaser, in the case of the Capital Securities, and to
the
Company, in the case of the Common Securities, will be validly issued and
represent undivided beneficial interests in the assets of the Trust. None of
the
Capital Securities or the Common Securities is 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.
5.6. Debentures.
The
Debentures have been duly authorized by the Company and, at 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 against payment therefor
by
the Trust, will constitute 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 Bankruptcy and Equity.
5.7. Power
and Authority.
This
Agreement has been duly authorized, executed and delivered by the Company and
the Trust and constitutes the valid and binding obligation of the Company and
the Trust, enforceable against the Company and the Trust in accordance with
its
terms, subject to Bankruptcy and Equity.
5.8. No
Defaults.
The
Trust
is not in violation of the Trust Agreement or, to the knowledge of the
Administrators, any provision of the Statutory Trust Act. The
execution, delivery and performance by the Company or the Trust of this
Agreement or the Operative Documents to which it is a party, and the
consummation of the transactions contemplated herein or therein and the use
of
the proceeds therefrom, will not conflict with or constitute a breach of, or
a
default under, or result in the creation or imposition of any lien, charge
or
other encumbrance upon any property or assets of the Trust, the Company or
any
of the Company’s Subsidiaries (as defined in Section 5.11 hereof) pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust, the Company or any of its Subsidiaries 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 for a conflict, breach, default, lien,
charge or encumbrance which could not, singly or in the aggregate, reasonably
be
expected to have a Material Adverse Effect nor will such action result in any
violation of the Trust Agreement or the Statutory Trust Act or require the
consent, approval, authorization or order of any court or governmental agency
or
body. As used herein, the term “Material Adverse Effect” means any
one or more effects that individually or in the aggregate are material and
adverse to the Offerors’ ability to consummate the transactions contemplated
herein or in the Operative Documents or any one or more effects that
individually or in the aggregate are material and adverse to the condition
(financial or otherwise), earnings, affairs, business, prospects or results
of
operations of the Company and its Subsidiaries taken as whole, whether or not
occurring in the ordinary course of business.
5.9. 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 Vermont, with all requisite corporate power
and
authority to own 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.
5.10. Subsidiaries
of the Company.
Each
of
the Company’s significant subsidiaries (as defined in Section 1-02(w) of
Regulation S-X to the Securities Act (the “Significant Subsidiaries”)) is listed
in Exhibit C attached hereto and incorporated herein by this
reference. 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, and 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 such Significant
Subsidiary to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect. All of the issued and outstanding shares of
capital stock of the Significant Subsidiaries (a) have been duly authorized
and are validly issued, (b) are fully paid and nonassessable, and
(c) are wholly owned, directly or indirectly, by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, restriction
upon
voting or transfer, preemptive rights, claim, equity or other
defect.
5.11. Permits.
The
Company and each of its subsidiaries (as defined in Section 1-02(x) of
Regulation S-X to the Securities Act) (the “Subsidiaries”) have all requisite
power and authority, and all necessary authorizations, approvals, orders,
licenses, certificates and permits of and from regulatory or governmental
officials, bodies and tribunals, to own or lease their respective properties
and
to conduct their respective businesses as now being conducted, except such
authorizations, approvals, orders, licenses, certificates and permits which,
if
not obtained and maintained, would not, singly or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of its Subsidiaries
has
received any notice of proceedings relating to the revocation or modification
of
any such authorizations, approvals, orders, licenses, certificates or permits
which, singly or in the aggregate, if the failure to be so licensed or approved
is the subject of an unfavorable decision, ruling or finding, would, 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
and
orders and consents, the violation of which would, singly or in the aggregate,
have a Material Adverse Effect.
5.12. Conflicts,
Authorizations and Approvals.
Neither
the Company nor any of its Subsidiaries is in violation of its respective
articles or certificate of incorporation, charter or by-laws or similar
organizational documents or 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 of its Subsidiaries is a party,
or
by which it or any of them may be bound or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, the effect of
which
violation or default in performance or observance would have, singly or in
the
aggregate, a Material Adverse Effect.
5.13. Holding
Company Registration and Deposit
Insurance.
The
Company is duly registered (i) as a bank holding company or financial
holding company under the Bank Holding Company Act of 1956, as amended, and
the
regulations of the Board of Governors of the Federal Reserve System (the
“Federal Reserve”) or (ii) as a savings and loan holding company under the
Home Owners’ Loan Act of 1933, as amended, and the regulations of the Office of
Thrift Supervision (the “OTS”), 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 proceedings for the termination of such
insurance are pending or threatened.
5.14. Financial
Statements.
(a)
The
consolidated balance sheets of the Company and all of its Subsidiaries as of
December 31, 2006 and December 31, 2005 and related consolidated
income statements and statements of changes in shareholders’ equity for the
three years ended December 31, 2006 together with the notes thereto, and
the consolidated balance sheets of the Company and all of its Subsidiaries
as of
June 30, 2007 and the related consolidated income statements and statements
of changes in shareholders’ equity for the six months then ended, copies of each
of which have been provided to the Placement Agents (together, the “Financial
Statements”), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be disclosed
therein) and fairly present in all material respects the financial position
and
the results of operations and changes in shareholders’ equity of the Company and
all of its Subsidiaries as of the dates and for the periods indicated (subject,
in the case of interim financial statements, to normal recurring year-end
adjustments, none of which shall be material). The books and records
of the Company and all of its Subsidiaries have been, and are being, maintained
in all material respects in accordance with generally accepted accounting
principles and any other applicable legal and accounting requirements and
reflect only actual transactions.
(b)
The
information in the Company’s most recently filed (i) FR Y-9C filed
with the Federal Reserve if the Company is a bank holding company,
(ii) FR Y-9SP filed with the Federal Reserve if the Company is a small
bank holding company or (iii) H-(b)11 filed with the OTS if the Company is
a savings and loan holding company (the “Regulatory Report”), previously
provided to the Placement Agents fairly presents in all material respects the
financial position of the Company and, where applicable, all of its Subsidiaries
as of the end of the period represented by such Regulatory Report.
(c)
Since
the
respective dates of the Financial Statements and the Regulatory Report, there
has been no material adverse change or development with respect to the financial
condition or earnings of the Company and all of its Subsidiaries, taken as
a
whole.
(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
thereunder.
5.15. Exchange
Act Reporting.
The
reports filed with the Securities and Exchange Commission (the “Commission”) by
the Company under the Securities Exchange Act of 1934, as amended (the “1934
Act”) and the regulations thereunder at the time they were filed with the
Commission complied as to form in all material respects with the requirements
of
the 1934 Act and such reports did not contain 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 in which they
were
made, not misleading.
5.16. Regulatory
Enforcement Matters.
Neither
the Company nor any of its Subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party
to,
any investigation with respect to, any cease-and-desist order, agreement,
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 since
January 1, 2004, a recipient of any supervisory letter from, or since
January 1, 2004, has adopted any board resolutions at the request of, any
Regulatory Agency (as defined below) that 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 ability or authority to
pay
dividends or make distributions to their shareholders or make payments of
principal or interest on their debt obligations, their management or their
business (each, a “Regulatory Agreement”), nor has the Company or any of its
Subsidiaries been advised since January 1, 2004, by any Regulatory Agency
that it is considering issuing or requesting any such Regulatory
Agreement. There is no material unresolved violation, criticism or
exception by any Regulatory Agency with respect to any report or statement
relating to any examinations of the Company or any of its
Subsidiaries. As used herein, the term “Regulatory Agency” means any
federal or state agency charged with the supervision or regulation of depository
institutions, bank, financial or savings and loan holding companies, 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
Company or any of its Subsidiaries. Neither the Company nor any of
the Subsidiaries is currently unable to pay dividends or make distributions
to
its shareholders with respect to any class of its equity securities, or
prohibited from paying principal or interest on its debt obligations, due to
a
restriction or limitation, whether by statute, contract or otherwise, and,
in
the reasonable judgment of the Company’s management, neither the Company nor any
of the Subsidiaries will be unable in the foreseeable future to pay dividends
or
make distributions with respect to any class of equity securities, or be
prohibited from paying principal or interest on its debt obligations, due to
a
restriction or limitation, whether by statute, contract or
otherwise.
5.17. No
Material Change.
Since
December 31, 2006, there has been no material adverse change or development
with respect to the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company or its Subsidiaries
on a consolidated basis, whether or not arising in the ordinary course of
business.
5.18. No
Undisclosed Liabilities.
Neither
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 giving rise to any
such
liability), except (i) for liabilities set forth in the Financial
Statements and (ii) normal fluctuation in the amount of the liabilities
referred to in clause (i) above occurring in the ordinary course of
business of the Company and all of its Subsidiaries since the date of the most
recent balance sheet included in the Financial Statements.
5.19. Litigation.
No
charge, investigation, action, suit or proceeding is pending or, to the
knowledge of the Offerors, threatened against or affecting the Company or its
Subsidiaries or any of their respective properties before or by any courts
or
any regulatory, administrative or governmental official, commission, board,
agency or other authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could have, singly or in the aggregate, a Material
Adverse Effect.
5.20. Deferral
of Interest Payments on Debentures.
The
Company has no present intention to exercise its option to defer payments of
interest on the Debentures as provided in the Indenture. The Company
believes that the likelihood that it would exercise its right to defer payments
of interest on the Debentures as provided in the Indenture at any time during
which the Debentures are outstanding is remote because of the restrictions
that
would be imposed on the Company’s ability to declare or pay dividends or
distributions on, or to redeem, purchase, 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 Debentures.
Section
6. Representations
and Warranties of the Placement Agents.
Each
Placement Agent represents and warrants to the Offerors as to itself (but not
as
to the other Placement Agent) as follows:
6.1. Organization,
Standing and Qualification.
(a)
FTN
Financial Capital Markets is a division of First Tennessee Bank National
Association, a national banking association duly organized, validly existing
and
in good standing under the laws of the United States, with full power and
authority to own, lease and operate its properties and conduct its business
as
currently being conducted. FTN Financial Capital Markets is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property or conducts
its
business so as to require such qualification and in which the failure to so
qualify would, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), earnings, business, prospects or
results of operations of FTN Financial Capital Markets.
(b)
Keefe,
Bruyette & Woods, Inc. is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York, with
full
power and authority to own, lease and operate its properties and conduct its
business as currently being conducted. Keefe, Bruyette & Woods, Inc. is
duly qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings, business,
prospects or results of operations of Keefe, Bruyette & Woods,
Inc.
6.2. Power
and Authority.
The
Placement Agent has all requisite power and authority to enter into this
Agreement, and this Agreement has been duly and validly authorized, executed
and
delivered by the Placement Agent and constitutes the legal, valid and binding
agreement of the Placement Agent, enforceable against the Placement Agent in
accordance with its terms, subject to Bankruptcy and Equity and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws.
6.3. General
Solicitation.
In
the
case of the offer and sale of the Capital Securities, no form of general
solicitation or general advertising was used by the Placement Agent or its
representatives including, but not limited to, advertisements, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio or any seminar or meeting whose attendees
have been invited by any general solicitation or general
advertising.
6.4. Purchaser.
The
Placement Agent has made such reasonable inquiry as is necessary to determine
that the Purchaser is acquiring the Capital Securities for its own account,
except as contemplated in Section 7.8 hereto, and that the Purchaser does not
intend to distribute the Capital Securities in contravention of the Securities
Act or any other applicable securities laws.
6.5. Qualified
Purchasers.
The
Placement Agent has not offered or sold and will not arrange for the offer
or
sale of the Capital Securities except (i) to those the Placement Agent
reasonably believes are “accredited investors” (as defined in Rule 501 of
Regulation D), or (ii) in any other manner that does not require
registration of the Capital 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 Capital Securities will not be made except in
compliance with applicable securities laws.
6.6. Offering
Circulars.
Neither
the Placement Agent nor its representatives will include any non-public
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 Capital Securities without
the prior written consent of the Trust and the Company.
Section
7. Covenants
of the Offerors.
The
Offerors covenant and agree with the Placement Agents and the Purchaser as
follows:
7.1. 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 5 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.
7.2. Sale
and Registration of Securities.
The
Offerors and their Affiliates shall not nor shall any of them permit any person
acting on their behalf (other than the Placement Agents), to directly or
indirectly (i) 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 Capital Securities in a manner
that would require the registration under the Securities Act of the Securities
or (ii) make offers or sales of any such Security, or solicit offers to buy
any such Security, under circumstances that would require the registration
of
any of such Securities under the Securities Act.
7.3. Use
of Proceeds.
The
Trust
shall use the proceeds from the sale of the Capital Securities and the Common
Securities to purchase the Debentures from the Company.
7.4. Investment
Company.
The
Offerors shall not 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.
7.5. Reimbursement
of Expenses.
If
the
sale of the Capital Securities provided for herein is not consummated
(i) because any condition set forth in Section 3 hereof is not
satisfied, or (ii) because of any refusal, inability or failure on the part
of the Company or the Trust to perform any agreement herein or comply with
any
provision hereof other than by reason of a breach by the Placement Agents,
the
Company shall reimburse the Placement Agents upon demand for all of their pro
rata share of out-of-pocket expenses (including reasonable fees and
disbursements of counsel) in an amount not to exceed $50,000.00 that shall
have
been incurred by them in connection with the proposed purchase and sale of
the
Capital Securities. Notwithstanding the foregoing, the Company shall
have no obligation to reimburse the Placement Agents for their out-of-pocket
expenses if the sale of the Capital Securities fails to occur because the
Placement Agents fail to fulfill a condition set forth in Section
4.
7.6. Solicitation
and Advertising.
In
connection with any offer or sale of any of the Securities, the Offerors shall
not, nor shall either of them permit any of their Affiliates or any person
acting on their behalf, other than the Placement Agents, to engage in any form
of general solicitation or general advertising (as defined in
Regulation D).
7.7. 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 Securities Exchange Act of 1934, as amended (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. This covenant is intended to be
for the benefit of the holders, and the prospective purchasers designated by
such holders, from time to time of such restricted securities. The
information provided by the Offerors pursuant to this Section 7.7 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.
7.8. Transfer
Notice.
The
Offerors acknowledge that the Purchaser may transfer the Capital Securities,
in
whole or in part, at any time and from time to time following the Closing Date
by delivering the notice (the “Transfer Notice”) attached as
Exhibit B to the Master Custodian Agreement, dated May 27,
2004, as amended, and attached as Exhibit A to the Subscription
Agreement. In order to facilitate such transfer, the Company shall
execute in blank five additional Capital Securities certificates, to be
delivered at Closing, such certificates to be completed with the name of the
transferee(s) to which the Capital Securities, in whole or in part, will be
transferred upon the receipt of a Transfer Notice and authenticated by the
Institutional Trustee at the time of each such transfer.
Section
8. Covenants
of the Placement Agents.
The
Placement Agents covenant and agree with the Offerors that, during the period
from the date of this Agreement to the Closing Date, the Placement Agents shall
use their best efforts and take all action necessary or appropriate to cause
their representations and warranties contained in Section 6 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 Agents further covenant and agree not to engage in hedging
transactions with respect to the Capital Securities unless such transactions
are
conducted in compliance with the Securities Act.
Section
9. Indemnification.
9.1. Indemnification
Obligation.
The
Offerors shall jointly and severally indemnify and hold harmless the Placement
Agents and the Purchaser and each of their respective agents, employees,
officers and directors and each person that controls either of the Placement
Agents or the Purchaser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and agents, employees, officers and
directors or any such controlling person of either of the Placement Agents
or
the Purchaser (each such person or entity, an “Indemnified Party”) from and
against any and all losses, claims, damages, judgments, liabilities or expenses,
joint or several, to which such Indemnified Party may become subject under
the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Offerors), insofar as such losses, claims, damages, judgments, liabilities
or
expenses (or actions in respect thereof) arise out of, or are based upon, or
relate to, in whole or in part, (a) any untrue statement or alleged untrue
statement of a material fact contained in any information (whether written
or
oral) or documents executed in favor of, furnished or made available to the
Placement Agents or the Purchaser by the Offerors, or (b) any omission or
alleged omission to state in any information (whether written or oral) or
documents executed in favor of, furnished or made available to the Placement
Agents or the Purchaser by the Offerors a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Indemnified Party for any legal and other expenses as such
expenses are reasonably incurred by such Indemnified Party in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, judgments, liability, expense or action described in this
Section 9.1. In addition to their other obligations under this
Section 9, the Offerors hereby agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of, or based upon, or related to the matters described above in
this
Section 9.1, they shall reimburse each Indemnified Party on a quarterly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as
to
the propriety and enforceability of the possibility that such payments might
later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each Indemnified Party shall promptly
return such amounts to the Offerors together with interest, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of
the
highest credit standing) announced from time to time by First Tennessee Bank
National Association (the “Prime Rate”). Any such interim
reimbursement payments which are not made to an Indemnified Party within 30
days
of a request for reimbursement shall bear interest at the Prime Rate from the
date of such request.
9.2. Conduct
of Indemnification Proceedings.
Promptly
after receipt by an Indemnified Party under this Section 9 of notice of the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Offerors under this Section 9, notify the
Offerors in writing of the commencement thereof; but, subject to
Section 9.4, the omission to so notify the Offerors shall not relieve them
from any liability pursuant to Section 9.1 which the Offerors may have to
any Indemnified Party unless and to the extent that the Offerors did not
otherwise learn of such action and such failure by the Indemnified Party results
in the forfeiture by the Offerors of substantial rights and
defenses. In case any such action is brought against any Indemnified
Party and such Indemnified Party seeks or intends to seek indemnity from the
Offerors, the Offerors shall be entitled to participate in, and, to the extent
that they may wish, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party; provided, however, if the
defendants in any such action include both the Indemnified Party and the
Offerors and the Indemnified Party shall have reasonably concluded that there
may be a conflict between the positions of the Offerors and the Indemnified
Party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Offerors, the Indemnified Party
shall have the right to select separate counsel to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Indemnified Party. Upon receipt of notice from the Offerors to such
Indemnified Party of their election to so assume the defense of such action
and
approval by the Indemnified Party of counsel, the Offerors shall not be liable
to such Indemnified Party under this Section 9 for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with
the
defense thereof unless (i) the Indemnified Party shall have employed such
counsel in connection with the assumption of legal defenses in accordance with
the proviso in the preceding sentence (it being understood, however, that the
Offerors shall not be liable for the expenses of more than one separate counsel
representing the Indemnified Parties who are parties to such action), or
(ii) the Offerors shall not have employed counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party within a reasonable
time after notice of commencement of the action, in each of which cases the
fees
and expenses of counsel of such Indemnified Party shall be at the expense of
the
Offerors.
9.3. Contribution.
If
the
indemnification provided for in this Section 9 is required by its terms,
but is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an Indemnified Party under Section 9.1 in respect of any
losses, claims, damages, liabilities or expenses referred to herein or therein,
then the Offerors shall contribute to the amount paid or payable by such
Indemnified Party as a result of any losses, claims, damages, judgments,
liabilities or expenses referred to herein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors, on the
one hand, and the Indemnified Party, on the other hand, from the offering of
such Capital Securities, or (ii) if the allocation provided by
clause (i) above 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 Agents, on the other hand, in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein or other breaches which resulted in such losses, claims, damages,
judgments, liabilities or expenses, as well as any other relevant equitable
considerations. The respective relative benefits received by the
Offerors, on the one hand, and the Placement Agents, on the other hand, shall
be
deemed to be in the same proportion, in the case of the Offerors, as the total
price paid to the Offerors for the Capital Securities sold by the Offerors
to
the Purchaser (net of the compensation paid to the Placement Agents hereunder,
but before deducting expenses), and in the case of the Placement Agents, as
the
compensation received by them, bears to the total of such amounts paid to the
Offerors and received by the Placement Agents as compensation. The
relative fault of the Offerors and the Placement Agents shall be determined
by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission of a material
fact or the inaccurate or the alleged inaccurate representation and/or warranty
relates to information supplied by the Offerors or the Placement Agents and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The provisions set
forth in Section 9.2 with respect to notice of commencement of any action
shall apply if a claim for contribution is made under this Section 9.3;
provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under
Section 9.2 for purposes of indemnification. The Offerors and
the Placement Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9.3 were determined by pro rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in this
Section 9.3. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages, judgments, liabilities or expenses
referred to in this Section 9.3 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by
such Indemnified Party in connection with investigating or defending any such
action or claim. In no event shall the liability of the Placement Agents
hereunder be greater in amount than the dollar amount of the compensation (net
of payment of all expenses) received by the Placement Agents upon the sale
of
the Capital Securities giving rise to such obligation. No person
found 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 found guilty of such fraudulent
misrepresentation.
9.4. Additional
Remedies.
The
indemnity and contribution agreements contained in this Section 9 are in
addition to any liability that the Offerors may otherwise have to any
Indemnified Party.
9.5. 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 9.1 through 9.4 hereof.
Section
10. Rights
and Responsibilities of Placement Agents.
10.1. Reliance.
In
performing their duties under this Agreement, the Placement Agents shall be
entitled to rely upon any notice, signature or writing which they shall in
good
faith believe to be genuine and to be signed or presented by a proper party
or
parties. The Placement Agents may rely upon any opinions or
certificates or other documents delivered by the Offerors or their counsel
or
designees to either the Placement Agents or the Purchaser.
10.2. Rights
of Placement Agents.
In
connection with the performance of their duties under this Agreement, the
Placement Agents shall not be liable for any error of judgment or any action
taken or omitted to be taken unless the Placement Agents were grossly negligent
or engaged in willful misconduct in connection with such performance or
non-performance. No provision of this Agreement shall require the
Placement Agents to expend or risk their own funds or otherwise incur any
financial liability on behalf of the Purchaser in connection with the
performance of any of their duties hereunder. The Placement Agents
shall be under no obligation to exercise any of the rights or powers vested
in
them by this Agreement.
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 5 hereof; provided, that any item set forth in
the Disclosure Schedule as an exception to a representation or warranty shall
be
deemed an admission by the Offerors that such item represents an exception,
fact, event or circumstance that is reasonably likely to result in a Material
Adverse Effect. The Disclosure Schedule shall be arranged in
paragraphs corresponding to the section numbers contained in
Section 5. 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 5 hereof unless such information is specifically
included on the Disclosure Schedule in accordance with the provisions of this
Section 11.1.
11.2. Legal
Expenses.
At
Closing, the Placement Agents shall provide a credit for the Offerors’
transaction-related legal expenses in the amount of $10,000.00.
11.3. Non-Disclosure.
Except
as
required by applicable law, including without limitation securities laws and
regulations promulgated thereunder, (i) the Offerors shall not, and will
cause their advisors and representatives not to, issue any press release or
other public statement regarding the transactions contemplated by this Agreement
or the Operative Documents prior to or on the Closing Date and
(ii) following the Closing Date, the Offerors shall not include in any
press release, other public statement or other communication regarding the
transactions contemplated by this Agreement or the Operative Documents, any
reference to the Placement Agents, WTC, the Purchaser, the term “PreTS” or any
derivations thereof, or the terms and conditions of this Agreement or the
Operative Documents. Notwithstanding anything to the contrary, the
Offerors may (1) consult any tax advisor regarding U.S. federal income tax
treatment or tax structure of the transaction contemplated under this Agreement
and the Operative Documents and (2) disclose to any and all persons,
without limitation of any kind, the U.S. Federal income tax structure (in each
case, within the meaning of Treasury Regulation § 1.6011-4) of the transaction
contemplated under this Agreement and the Operative Documents and all materials
of any kind (including opinions or other tax analyses) that are provided to
you
relating to such tax treatment and tax structure. For this purpose,
“tax structure” is limited to any facts relevant to the U.S. federal income tax
treatment of the transaction and does not include information relating to
identity of the parties.
11.4. Notices.
Prior
to
the Closing, and thereafter with respect to matters pertaining to this Agreement
only, all notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier
or overnight air courier guaranteeing next day delivery:
if
to the
Placement Agents, to:
FTN
Financial Capital Markets
845
Crossover Lane, Suite 150
Memphis,
Tennessee 38117
Telecopier: 901-435-4706
Telephone: 800-456-5460
Attention: James
D. Wingett
and
Keefe,
Bruyette & Woods, Inc.
787
7th
Avenue
4th
Floor
New
York,
New York 10019
Telecopier: 212-403-2000
Telephone: 212-403-1004
Attention: Mitchell
Kleinman, General Counsel
with
a
copy to:
Lewis,
Rice & Fingersh, L.C.
500
North
Broadway, Suite 2000
St. Louis,
Missouri 63102
Telecopier: 314-241-6056
Telephone: 314-444-7600
Attention: Thomas
C. Erb, Esq.
and
Sidley
Austin LLP
787
7th
Avenue
New
York,
New York 10019
Telecopier: 212-839-5599
Telephone: 212-839-5300
Attention: Renwick
Martin, Esq.
if
to the
Offerors, to:
Community
Bancorp.
4811
U.S.
Route #5
Derby,
Vermont 05829
Telecopier: 802-334-3484
Telephone: 802-334-7915
Attention: Stephen P.
Marsh
with
a
copy to:
Primmer
Piper Eggleston & Crammer PC
421
Summer Street
St.
Johnsbury, Vermont 05819
Telecopier: 802-748-3976
Telephone: 802-748-5061
Attention: Denise
Deschenes, Esq.
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 Agents, the Offerors, and their
respective counsel, may change their respective notice addresses from time
to
time by written notice to all of the foregoing persons.
11.5. Parties
in Interest, Successors and Assigns.
Except
as
expressly set forth herein, this Agreement is made solely for the benefit of
the
Placement Agents, the Purchaser and the Offerors and any person controlling
the
Placement Agents, the Purchaser or the Offerors and their respective successors
and assigns; and no other person shall acquire or have any right under or by
virtue of this Agreement. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the
parties.
11.6. Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
11.7. Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
11.8. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAWS PERTAINING TO CONFLICTS OF LAWS) OF THE STATE OF NEW
YORK.
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 Agents’ and the Purchaser’s rights and
privileges shall be enforceable to the fullest extent permitted by
law.
11.11. Survival.
The
Placement Agents and the Offerors, respectively, agree that the representations,
warranties and agreements made by each of them in this Agreement and in any
certificate or other instrument delivered pursuant hereto shall remain in full
force and effect and shall survive the delivery of, and payment for, the Capital
Securities.
Signatures
appear on the following page
If
this
Agreement is satisfactory to you, please so indicate by signing the acceptance
of this Agreement and deliver such counterpart to the Offerors whereupon this
Agreement will become binding between us in accordance with its
terms.
Very
truly yours,
COMMUNITY
BANCORP.
By:
|
/s/ Richard C. White |
Name:
|
Richard C. White |
Title:
|
Chairman & CEO |
CMTV
STATUTORY TRUST I
By:
|
/s/ Richard C. White |
Name:
|
Richard
C. White |
Title:
|
Administrator
|
CONFIRMED
AND ACCEPTED,
as
of the
date first set forth above
FTN
FINANCIAL CAPITAL MARKETS,
a
division of First Tennessee Bank National Association,
as
a Placement Agent
By:
|
/s/ James D. Wingett |
Name:
|
James D. Wingett |
Title:
|
Senior Vice President |
KEEFE,
BRUYETTE & WOODS, INC.,
a
New York corporation, as a Placement Agent
By:
|
/s/ Peter J. Wirth |
Name:
|
Peter J. Wirth |
Title:
|
Managing Director |
EXHIBIT
A
FORM
OF SUBSCRIPTION AGREEMENT
CMTV
STATUTORY TRUST I
COMMUNITY
BANCORP.
SUBSCRIPTION
AGREEMENT
October 31,
2007
THIS
SUBSCRIPTIONAGREEMENT (this “Agreement”) made among
CMTV Statutory Trust I (the “Trust”), a statutory trust created under the
Delaware Statutory Trust Act (Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. §§ 3801, et seq.), Community Bancorp., a Vermont
corporation, with its principal offices located at 4811 U.S. Route #5, Derby,
Vermont 05829 (the “Company” and, collectively with the Trust, the
“Offerors”), and First Tennessee Bank National Association (the
“Purchaser”).
RECITALS:
A. The
Trust
desires to issue 12,500 of its Fixed/Floating Rate Capital Securities (the
“Capital Securities”), liquidation amount $1,000.00 per Capital Security,
representing an undivided beneficial interest in the assets of the Trust (the
“Offering”), to be issued pursuant to an Amended and Restated Declaration of
Trust (the “Declaration”) by and among the Company, Wilmington Trust Company
(“WTC”), the administrators named therein, and the holders (as defined therein),
which Capital 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 WTC, as trustee
(the “Guarantee”); and
B. The
proceeds from the sale of the Capital 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 Fixed/Floating
Rate Junior Subordinated Deferrable Interest Debentures of the Company (the
“Debentures”) to be issued by the Company pursuant to an indenture to be
executed by the Company and WTC, as trustee (the “Indenture”); and
C. In
consideration of the premises and the mutual representations and covenants
hereinafter set forth, the parties hereto agree as follows:
PURCHASE
AND SALE OF CAPITAL SECURITIES
1.1. Upon
the
execution of this Agreement, the Purchaser hereby agrees to purchase from the
Trust 12,500 Capital Securities at a price equal to $1,000.00 per Capital
Security (the “Purchase Price”) and the Trust agrees to sell such Capital
Securities to the Purchaser for said Purchase Price. The rights and
preferences of the Capital Securities are set forth in the
Declaration. The Purchase Price is payable in immediately available
funds on October 31, 2007, or such other business day as may be designated
by the Purchaser, but in no event later than November 7, 2007 (the “Closing
Date”). The Offerors shall provide the Purchaser wire transfer
instructions no later than 1 day following the date hereof.
1.2. As
a
condition to its purchase of the Capital Securities, Purchaser shall enter
into
the Joinder Agreement to the Master Custodian Agreement, the form of which
is
attached hereto as Exhibit A (the “Custodian Agreement”) and, in accordance
therewith, the certificate for the Capital Securities shall be delivered by
the
Trust on the Closing Date to the custodian in accordance with the Custodian
Agreement. Purchaser shall not transfer the Capital Securities to any
person or entity except in accordance with the terms of the Custodian
Agreement.
1.3. The
Placement Agreement, dated October 30, 2007 (the “Placement Agreement”),
among the Offerors and the placement agents identified therein (the “Placement
Agents”) 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 Agents and the Purchaser under 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.
1.4. Anything
herein or in the Placement Agreement notwithstanding, the Offerors acknowledge
and agree that, so long as Purchaser holds some or all of the Capital
Securities, the Purchaser may in its discretion from time to time transfer
or
sell, or sell or grant participation interests in, some or all of such Capital
Securities to one or more parties, provided that any such transaction complies,
as applicable, with the registration requirements of the Securities Act of
1933,
as amended (the “Securities Act”) and any other applicable securities laws, is
pursuant to an exemption therefrom, or is otherwise not subject
thereto.
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
2.1. The
Purchaser understands and acknowledges that none of the Capital Securities,
the
Debentures or the Guarantee have been registered under the Securities Act or
any
other applicable securities law, are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act, and 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, except as contemplated under
Section 1.4 hereof, it is purchasing the Capital Securities for its own
account, for investment, 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 Capital 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.
2.3. The
Purchaser represents and warrants that neither the Offerors nor the Placement
Agents are acting as a fiduciary or financial or investment adviser for the
Purchaser.
2.4. The
Purchaser represents and warrants that it is not relying (for purposes of making
any investment decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of the Offerors or of the Placement
Agents.
2.5. 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 Capital
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 Agents.
2.6. The
Purchaser represents and warrants that it is a “qualified institutional buyer”
as defined under Rule 144A under the Securities Act. If the
Purchaser is a dealer of the type described in paragraph (a)(1)(ii) of
Rule 144A under the Securities Act, it owns and invests on a discretionary
basis not less than U.S. $25,000,000.00 in securities of issuers that are not
affiliated with it. The Purchaser is not a participant-directed
employee plan, such as a 401(k) plan, or any other type of plan referred to
in
paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A, or a trust fund
referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the
assets of such a plan, unless investment decisions with respect to the plan
are
made solely by the fiduciary, trustee or sponsor of such plan.
2.7. The
Purchaser represents and warrants that on each day from the date on which it
acquires the Capital Securities through and including the date on which it
disposes of its interests in the Capital Securities, either (i) it is not
(a) an “employee benefit plan” (as defined in Section 3(3) of the
United States Employee Retirement Income Security Act of 1974, as amended
(“ERISA”)) which is subject to the provisions of Part 4 of
Subtitle B of Title I of ERISA, or any entity whose underlying assets
include the assets of any such plan (an “ERISA Plan”), (b) any other
“plan” (as defined in Section 4975(e)(1) of the United States Internal
Revenue Code of 1986, as amended (the “Code”)) which is subject to the
provisions of Section 4975 of the Code or any entity whose underlying
assets include the assets of any such plan (a “Plan”), (c) an entity
whose underlying assets include the assets of any such ERISA Plan or other
Plan
by reason of Department of Labor regulation section 2510.3-101 or
otherwise, or (d) a governmental or church plan that is subject to any
federal, state or local law which is substantially similar to the provisions
of
Section 406 of ERISA or Section 4975 of the Code (a “Similar
Law”); or (ii) the purchase, holding and disposition of the Capital
Securities by it will satisfy the requirements for exemptive relief under
Prohibited Transaction Class Exemption (“PTCE”) 84-14, PTCE 90-1, PTCE
91-38, PTCE 95-60, PTCE 96-23 or a similar exemption, or, in the case of a
plan
subject to a Similar Law, will not result in a non-exempt violation of such
Similar Law.
2.8. The
Purchaser represents and warrants that it is acquiring the Capital Securities
as
principal for its own account for investment and, except as contemplated under
Section 1.4 hereof, not for sale in connection with any distribution
thereof. It was not formed solely for the purpose of investing in the
Capital Securities, and additional capital or similar contributions were not
specifically solicited from any person owning a beneficial interest in it for
the purpose of enabling it to purchase any Capital Securities. The
Purchaser is not a (i) partnership, (ii) common trust fund or
(iii) special trust, pension, profit sharing or other retirement trust fund
or plan in which the partners, beneficiaries or participants, as applicable,
may
designate the particular investments to be made or the allocation of any
investment among such partners, beneficiaries or participants, and except as
contemplated under Section 1.4 hereof, it agrees that it shall not hold the
Capital Securities for the benefit of any other person and shall be the sole
beneficial owner thereof for all purposes and that it shall not sell
participation interests in the Capital Securities or enter into any other
arrangement pursuant to which any other person shall be entitled to a beneficial
interest in the distribution on the Capital Securities. The Capital
Securities purchased directly or indirectly by the Purchaser constitute an
investment of no more than 40% of its assets. The Purchaser
understands and agrees that any purported transfer of the Capital Securities
to
a purchaser which would cause the representations and warranties of
Section 2.6 and this Section 2.8 to be inaccurate shall be null and
void ab initio and the Offerors retain the right to resell any Capital
Securities sold to non-permitted transferees.
2.9. The
Purchaser represents and warrants that it has full power and authority to
execute and deliver this Agreement, to make the representations and warranties
specified herein, and to consummate the transactions contemplated herein and
it
has full right and power to subscribe for Capital Securities and perform its
obligations pursuant to this Agreement.
2.10. The
Purchaser represents and warrants that no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of,
any
governmental body, agency or court having jurisdiction over the Purchaser,
other
than those that have been made or obtained, is necessary or required for the
performance by the Purchaser of its obligations under this Agreement or to
consummate the transactions contemplated herein.
2.11. The
Purchaser represents and warrants that this Agreement has been duly authorized,
executed and delivered by the Purchaser.
2.12. The
Purchaser understands and acknowledges that the Company will rely upon the
truth
and accuracy of the foregoing acknowledgments, representations, warranties
and
agreements and agrees that, if any of the acknowledgments, representations,
warranties or agreements deemed to have been made by it by its purchase of
the
Capital Securities are no longer accurate, it shall promptly notify the
Company.
2.13. The
Purchaser understands that no public market exists for any of the Capital
Securities, and that it is unlikely that a public market will ever exist for
the
Capital Securities.
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:
To
the Offerors:
|
Community
Bancorp.
|
|
4811
U.S. Route #5
|
|
Derby,
Vermont 05829
|
|
Attention: Stephen P.
Marsh
|
|
Fax: 802-334-3484
|
|
|
To
the Purchaser:
|
First
Tennessee Bank National Association
|
|
845
Crossover Lane, Suite 150
|
|
Memphis,
Tennessee 38117
|
|
Attention: David
Work
|
|
Fax: 901-435-7983
|
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
Capital 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.
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.
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.
FIRST
TENNESSEE BANK NATIONAL ASSOCIATION
COMMUNITY
BANCORP.
CMTV
STATUTORY
TRUST I
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
Administrator
|
EXHIBIT
A TO SUBSCRIPTION AGREEMENT
MASTER
CUSTODIAN AGREEMENT
This
Master Custodian Agreement (this “Agreement”) is made and entered into as of
May 27, 2004 by and among each purchaser (each a “Purchaser” and
collectively the “Purchasers”) that enters into a Joinder Agreement attached
hereto as Exhibit A (the “Joinder Agreement”), Wilmington Trust Company, a
Delaware banking corporation (the “Custodian”) and each issuing entity (each an
“Issuer” and collectively the “Issuers”) that enters into a Joinder
Agreement. The Purchasers and the Issuers are sometimes referred to
herein as the “Interested Parties”.
RECITALS
A. The
Purchasers intend to purchase from the Issuers or their respective statutory
business trust subsidiaries Securities issued by such Issuers (the
“Securities”).
B. In
order
to facilitate any future transfer of all or any portion of the Securities by
the
Purchasers, the Interested Parties intend to provide for the custody of the
Securities and certain other securities on the terms set forth
herein.
C. The
Custodian is willing to hold and administer such securities and to distribute
the securities held by it in accordance with the agreement of the Interested
Parties and/or arbitral or judicial orders and decrees as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the
foregoing, the mutual covenants herein contained and other good and valuable
consideration (the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties by their execution hereof), the parties agree as
follows:
1. Joinder
Agreement. On or before the delivery to the Custodian of any
Securities issued by an Issuer, such Issuer and the applicable Purchaser or
Purchasers shall enter into a Joinder Agreement substantially in the form of
Exhibit A attached hereto, with such additional provisions as the Interested
Parties may wish to add from time to time. An executed copy of each
such Joinder Agreement shall be delivered to the Custodian on or before the
date
on which such Issuer’s Securities are issued. This Agreement and each
Joinder Agreement constitute the entire agreement among the Purchasers, Issuers
and the Custodian pertaining to the subject matter hereof.
2. Delivery
of Securities. On or before each date on which an Issuer enters
into a Joinder Agreement:
(a) The
applicable Issuer shall deliver to the Custodian a signed, authenticated
certificate representing a beneficial interest in such Issuer’s Securities, with
the Purchaser designated as owner thereof (the “Original
Securities”). The Custodian shall have no responsibility for the
genuineness, validity, market value, title or sufficiency for any intended
purpose of the Original Securities.
(b) The
applicable Issuer shall deliver to the Custodian five signed, unauthenticated
and undated certificates with no holder designated, each of which when completed
representing a beneficial interest in such Issuer’s Securities (the “Replacement
Securities”). The Custodian shall have no responsibility for the
genuineness, validity, market value, title or sufficiency for any intended
purpose of the Replacement Securities.
3. Timing
of Release from Custody. Upon receipt of a signed transfer notice
in the form of Exhibit B to be delivered in connection with the Purchaser’s
transfer of all or any portion of an Issuer’s Securities, on the effective date
set forth in such transfer notice, the Custodian shall:
(a) Deliver
the Original Securities certificate corresponding to the Issuer identified
in
the transfer notice to Wilmington Trust Company, as Institutional Trustee under
the Amended and Restated Declaration of Trust, dated as of the date of the
applicable Joinder Agreement, among the Institutional Trustee, the Issuer and
the administrators named therein (the “Declaration”) or as Trustee under the
Indenture, dated as of the date of the applicable Joinder Agreement, between
the
Issuer and the Trustee (the “Indenture”), as applicable, for the purpose of
canceling the applicable Original Securities certificate in accordance with
the
terms of the Issuer’s Amended and Restated Declaration of Trust or Indenture, as
applicable; and
(b) Deliver
the Replacement Securities certificate(s) corresponding to the Issuer identified
in the transfer notice in the amount designated in and in accordance with the
transfer notice for the purpose of completing and authenticating the applicable
Replacement Securities certificate(s) in accordance with the terms of the
Issuer’s Declaration or Indenture, as applicable.
|
The
initial term of this Agreement shall be one year (the “Initial
Term”). Unless FTN Financial Capital Markets or Keefe, Bruyette
& Woods, Inc. shall otherwise notify the Custodian in writing, upon
expiration of the Initial Term, this Agreement shall automatically
renew
for an additional one-year term and shall continue to automatically
renew
for succeeding one-year terms until terminated. Upon
termination of this Agreement, the Custodian and the Interested Parties
shall be released from all obligations hereunder, except for the
indemnification obligations set forth in paragraphs 5(b) and 5(c)
hereof.
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4. Concerning
the Custodian.
(a) Each
Interested Party acknowledges and agrees that the Custodian (i) shall not be
responsible for any of the agreements referred to or described herein (including
without limitation any Issuer’s Declaration or Indenture relating to such
Issuer’s Securities), or for determining or compelling compliance therewith, and
shall not otherwise be bound thereby, (ii) shall be obligated only for the
performance of such duties as are expressly and specifically set forth in this
Agreement on its part to be performed, each of which are ministerial (and shall
not be construed to be fiduciary) in nature, and no implied duties or
obligations of any kind shall be read into this Agreement against or on the
part
of the Custodian, (iii) shall not be obligated to take any legal or other action
hereunder which might in its judgment involve or cause it to incur any expense
or liability unless it shall have been furnished with acceptable
indemnification, (iv) may rely on and shall be protected in acting or refraining
from acting upon any written notice, instruction, instrument, statement,
certificate, request or other document furnished to it hereunder and believed
by
it to be genuine and to have been signed or presented by the proper person,
and
shall have no responsibility for determining the accuracy thereof, and (v)
may
consult counsel satisfactory to it, including in-house counsel, and the opinion
or advice of such counsel in any instance shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or advice
of
such counsel.
(b) The
Custodian shall not be liable to anyone for any action taken or omitted to
be
taken by it hereunder except in the case of the Custodian’s negligence or
willful misconduct in breach of the terms of this Agreement. In no
event shall the Custodian be liable for indirect, punitive, special or
consequential damage or loss (including but not limited to lost profits)
whatsoever, even if the Custodian has been informed of the likelihood of such
loss or damage and regardless of the form of action.
(c) The
Custodian shall have no more or less responsibility or liability on account
of
any action or omission of any book-entry depository, securities intermediary
or
other subcustodian employed by the Custodian than any such book-entry
depository, securities intermediary or other subcustodian has to the Custodian,
except to the extent that such action or omission of any book-entry depository,
securities intermediary or other subcustodian was caused by the Custodian’s own
negligence, bad faith or willful misconduct in breach of this
Agreement.
(d) The
recitals contained herein shall be taken as the statements of each of the
Issuers and the Purchaser, and the Custodian assumes no responsibility for
the
correctness of the same. The Custodian makes no representations as to
the validity or sufficiency of this Agreement or the Securities. The
Custodian shall not be accountable for the use or application by any of the
Issuers or the Purchaser of any Securities or the proceeds of any
Securities.
5. Compensation,
Expense Reimbursement and Indemnification.
(a) The
Custodian shall be compensated pursuant to a separate fee
agreement.
(b) Each
of
the Interested Parties agrees, jointly and severally, to reimburse the Custodian
on demand for all costs and expenses incurred in connection with the
administration of this Agreement or the performance or observance of its duties
hereunder which are in excess of its customary compensation for normal services
hereunder, including without limitation, payment of any legal fees and expenses
incurred by the Custodian in connection with resolution of any claim by any
party hereunder.
(c) Each
of
the Interested Parties covenants and agrees, jointly and severally, to indemnify
the Custodian (and its directors, officers and employees) and hold it (and
such
directors, officers and employees) harmless from and against any loss,
liability, damage, cost and expense of any nature incurred by the Custodian
arising out of or in connection with this Agreement or with the administration
of its duties hereunder, including but not limited to attorney’s fees and other
costs and expenses of defending or preparing to defend against any claim of
liability unless and except to the extent such loss, liability, damage, cost
and
expense shall be caused by the Custodian’s negligence, bad faith, or willful
misconduct. The provisions in this paragraph 5 shall survive the
expiration of this Agreement and the resignation or removal of the
Custodian.
6. Voting
Rights. The Custodian shall be under no obligation to preserve,
protect or exercise rights in the Original Securities, and shall be responsible
only for reasonable measures to maintain the physical safekeeping thereof,
and
otherwise to perform and observe such duties on its part as are expressly set
forth in this Agreement. The Custodian shall not be responsible for
forwarding to any Interested Party, notifying any Interested Party with respect
to, or taking any action with respect to, any notice, solicitation or other
document or information, written or otherwise, received from an issuer or other
person with respect to the Original Securities, including but not limited to,
proxy material, tenders, options, the pendency of calls and maturities and
expiration of rights.
7. Resignation.
The Custodian may at any time resign as Custodian hereunder by giving thirty
(30) days’ prior written notice of resignation to each of the Interested
Parties. Prior to the effective date of the resignation as specified
in such notice, the Interested Parties will issue to the Custodian a written
instruction authorizing redelivery of the Original Securities and the
Replacement Securities to a bank or trust company that they select as successor
to the Custodian hereunder. If, however, the Interested Parties shall fail
to
name such a successor custodian within twenty days after the notice of
resignation from the Custodian, the Purchasers shall be entitled to name such
successor custodian. If no successor custodian is named by the
Interested Parties or the Purchasers, the Custodian may apply to a court of
competent jurisdiction for appointment of a successor custodian.
8. Dispute
Resolution. It is understood and agreed that should any dispute
arise with respect to the delivery, ownership, right of possession, and/or
disposition of the Original Securities or the Replacement Securities, or should
any claim be made upon the Custodian, the Original Securities or the Replacement
Securities by a third party, the Custodian upon receipt of notice of such
dispute or claim is authorized and shall be entitled (at its sole option and
election) to retain in its possession without liability to anyone, all or any
of
said Original Securities and Replacement Securities until such dispute shall
have been settled either by the mutual written agreement of the parties involved
or by a final order, decree or judgment of a court in the United States of
America, the time for perfection of an appeal of such order, decree or judgment
having expired. The Custodian may, but shall be under no duty
whatsoever to, institute or defend any legal proceedings which relate to the
Original Securities and Replacement Securities.
9. Consent
to Jurisdiction and Service. Each of the Interested Parties
hereby absolutely and irrevocably consents and submits to the jurisdiction
of
the courts in the State of Delaware and of any Federal court located in said
State in connection with any actions or proceedings brought against any of
the
Interested Parties (or each of them) by the Custodian arising out of or relating
to this Agreement. In any such action or proceeding, the Interested
Parties each hereby absolutely and irrevocably (i) waives any objection to
jurisdiction or venue, (ii) waives personal service of any summons, complaint,
declaration or other process, and (iii) agrees that the service thereof may
be
made by certified or registered first-class mail directed to such party, as
the
case may be, at their respective addresses in accordance with paragraph 10
hereof.
10. Force
Majeure. The Custodian shall not be responsible for delays or
failures in performance resulting from acts beyond its control. Such
acts shall include but not be limited to acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, computer viruses, power failures, earthquakes
or other disasters.
11. Notices.
(a) Any
notice permitted or required hereunder shall be in writing, and shall be sent
by
personal delivery, overnight delivery by a recognized courier or delivery
service, mailed by registered or certified mail, return receipt requested,
postage prepaid, or by confirmed facsimile accompanied by mailing of the
original on the same day by first class mail, postage prepaid, in each case
the
parties at their address set forth below (or to such other address as any such
party may hereafter designate by written notice to the other
parties).
If
to an Issuer, to the address
appearing on such Issuer’s Joinder Agreement
If
to the Purchaser, to the address
appearing on such Purchaser’s Joinder Agreement
If
to the Custodian:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention: Chris
Slaybaugh -
Corporate Trust Administration
Fax: 302-636-4140
12. Miscellaneous.
(a) Binding
Effect. This Agreement shall be binding upon the respective
parties hereto and their heirs, executors, successors and assigns.
(b) Modifications. This
Agreement may not be altered or modified without the express written consent
of
the parties hereto. No course of conduct shall constitute a waiver of
any of the terms and conditions of this Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A
waiver of any of the terms and conditions of this Agreement on one occasion
shall not constitute a waiver of the other terms of this Agreement, or of such
terms and conditions on any other occasion.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
(d) Reproduction
of Documents. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications which
may
hereafter be executed, and (b) certificates and other information previously
or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, optical disk, micro-card, miniature photographic or other similar
process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such
reproduction was made by a party in the regular course of business, and that
any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
(e) Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
signatures
appear on the following page
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the day first above written.
WILMINGTON
TRUST
COMPANY
By:
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/s/
Christopher J. Slaybaugh
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Print
Name:
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Christopher
J. Slaybaugh
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Title:
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Financial
Services Officer
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EXHIBIT
A TO MASTER CUSTODIAN AGREEMENT
FORM
OF JOINDER AGREEMENT
October 31,
2007
This
Joinder Agreement (this “Agreement”) is entered into as of October 31, 2007
by First Tennessee Bank National Association (the “Purchaser”) and CMTV
Statutory Trust I (the “Issuer”).
RECITALS
A. Wilmington
Trust Company (the “Custodian”) is party to that certain Master Custodian
Agreement dated as of May 27, 2004, as amended (the “Custodian
Agreement”).
B. The
Custodian Agreement provides that certain financial institutions that have
issued securities (or whose statutory trust subsidiaries have issued securities)
and the Purchaser of such securities will join into the Custodian Agreement
pursuant to the terms of a joinder agreement.
C. On
the date hereof, Issuer is issuing securities to the Purchaser and the Issuer
and the Purchaser desire to enter into this Agreement to facilitate the
subsequent transfer of the Issuer’s securities by the Custodian.
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants herein
contained and other good and valuable consideration (the receipt, adequacy
and
sufficiency of which are hereby acknowledged by the Issuer by its execution
hereof), the Issuer agrees as follows:
1. Joinder. The
Issuer and Purchaser hereby join in the Custodian Agreement and agree to be
subject to, and bound by, the terms and provisions of the Custodian Agreement
that are ascribed to “Issuers” and “Purchasers” respectively therein to the same
extent as if the Issuer and Purchaser had signed the Custodian Agreement as
an
original party thereto.
2. Notice. Any
notice permitted or required to be sent to an Issuer under the Custodian
Agreement shall be sent to the following address:
CMTV
Statutory Trust I
c/o
Community Bancorp.
4811
U.S.
Route #5
Derby,
Vermont 05829
Attention: Stephen P.
Marsh
Any
notice permitted or required to be sent to a Purchaser under the Custodian
Agreement shall be sent to the following address:
First
Tennessee Bank National Association
845
Crossover Lane, Suite 150
Memphis,
Tennessee 38117
Attention: David
Work
3. Termination. This
Agreement and the Purchaser’s and Issuer’s respective rights and obligations
under the Custodian Agreement shall terminate upon the transfer of all of
Issuer’s securities pursuant to the Custodian Agreement.
4. Entire
Agreement. This Agreement and the Custodian Agreement constitute
the entire agreement among the Purchaser, Issuer and the Custodian pertaining
to
the subject matter hereof.
IN
WITNESS WHEREOF, the Issuer and Purchaser have executed this Agreement as of
the
day first above written.
CMTV
STATUTORY
TRUST I
By:
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Name:
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Title:
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Administrator
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FIRST
TENNESSEE BANK
NATIONAL ASSOCIATION
EXHIBIT B
TO MASTER CUSTODIAN AGREEMENT
FORM
OF TRANSFER NOTICE
[DATE]
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
Attention: Corporate
Trust Administration
Dear
Sir
or Madam:
The
undersigned hereby notifies you of the transfer of [________] of the Capital
Securities of CMTV Statutory Trust I, such transfer to be effective on
[DATE OF TRANSFER]. Capitalized terms used in this notice and not
otherwise defined shall have the meanings ascribed to such terms in the
Placement Agreement dated October 30, 2007 between the Offerors and the
placement agents named therein.
The
undersigned hereby instructs you as Custodian to deliver the Original Securities
certificate to Wilmington Trust Company, as Institutional Trustee (the
“Trustee”) under the Amended and Restated Trust Agreement dated October 31,
2007 among the Trustee, Community Bancorp. and the administrative trustees
named
therein (the “Trust Agreement”) for cancellation in accordance with the terms of
the Trust Agreement and to deliver the Replacement Securities certificate to
the
Trustee for authentication in accordance with the terms of the Trust
Agreement.
By
copy
of this notice, the Institutional Trustee is hereby instructed to make the
Replacement Securities certificate registered to [NAME, ADDRESS AND IDENTITY
OF
TRANSFEREE] in the liquidation amount of [_________] and bearing the
identification number “CUSIP NO. [__________]” and to authenticate and deliver
the Replacement Securities certificate to [_____________].
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FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION
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cc: Community
Bancorp.
Wilmington
Trust Company, as
Trustee
EXHIBIT
B-1
FORM
OF COMPANY COUNSEL OPINION
October 31,
2007
First
Tennessee Bank National Association
845
Crossover Lane, Suite 150
Memphis,
Tennessee 38117
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890-1600
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FTN
Financial Capital Markets
845
Crossover Lane, Suite 150
Memphis,
Tennessee 38117
Keefe,
Bruyette & Woods, Inc.
787
7th Avenue, 4th Floor
New
York, New York 10019
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Ladies
and Gentlemen:
We
have
acted as counsel to Community Bancorp. (the “Company”), a Vermont corporation in
connection with a certain Placement Agreement, dated October 30, 2007, (the
“Placement Agreement”), between the Company and CMTV Statutory Trust I (the
“Trust”), on one hand, and FTN Financial Capital Markets and Keefe, Bruyette
& Woods, Inc. (the “Placement Agents”), on the other
hand. Pursuant to the Placement Agreement, and subject to the terms
and conditions stated therein, the Trust will issue and sell to First Tennessee
Bank National Association (the “Purchaser”), $12,500,000.00 aggregate principal
amount of Fixed/Floating Rate Capital Securities (liquidation amount $1,000.00
per capital security) (the “Capital Securities”).
Capitalized
terms used herein and not otherwise defined shall have the same meanings
ascribed to them in the Placement Agreement.
The
law
covered by the opinions expressed herein is limited to the law of the United
States of America and of the State of Vermont.
We
have
made such investigations of law as, in our judgment, were necessary to render
the following opinions. We have also reviewed (a) the Company’s
Articles of Incorporation, as amended, and its By-Laws, as amended; and
(b) such corporate documents, records, information and certificates of the
Company and the Subsidiaries, certificates of public officials or government
authorities and other documents as we have deemed necessary or appropriate
as a
basis for the opinions hereinafter expressed. As to certain facts
material to our opinions, we have relied, with your permission, upon statements,
certificates or representations, including those delivered or made in connection
with the above-referenced transaction, of officers and other representatives
of
the Company and the Subsidiaries and the Trust.
As
used
herein, the phrases “to the best of our knowledge” or “known to us” or other
similar phrases mean the actual knowledge of the attorneys who have had active
involvement in the transactions described above or who have prepared or signed
this opinion letter, or who otherwise have devoted substantial attention to
legal matters for the Company.
Based
upon and subject to the foregoing and the further qualifications set forth
below, we are of the opinion as of the date hereof that:
1. The
Company is validly existing and in good standing under the laws of the State
of
Vermont and is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended. Each of the Significant Subsidiaries
is validly existing and in good standing under the laws of its jurisdiction
of
organization. Each of the Company and the Significant Subsidiaries
has full corporate power and authority to own or lease its properties and to
conduct its business as such business is currently conducted in all material
respects. To the best of our knowledge, all outstanding shares of
capital stock of the Significant Subsidiaries have been duly authorized and
validly issued, and are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 1831o or 12 U.S.C.
Section 55, and are owned of record and beneficially, directly or
indirectly, by the Company.
2. The
issuance, sale and delivery of the Debentures in accordance with the terms
and
conditions of the Placement Agreement and the Operative Documents have been
duly
authorized by all necessary actions of the Company. The issuance,
sale and delivery of the Debentures by the Company and the issuance, sale and
delivery of the Capital Securities and the Common Securities by the Trust do
not
give rise to any preemptive or other rights to subscribe for or to purchase
any
shares of capital stock or equity securities of the Company or the Significant
Subsidiaries pursuant to the corporate Articles of Incorporation or Charter,
By-Laws or other governing documents of the Company or the Significant
Subsidiaries, or, to the best of our knowledge, any agreement or other
instrument to which either the Company or the Subsidiaries is a party or by
which the Company or the Significant Subsidiaries may be bound.
3. The
Company has all requisite corporate power to enter into and perform its
obligations under the Placement Agreement and the Subscription Agreement, and
the Placement Agreement and the Subscription Agreement have been duly and
validly authorized, executed and delivered by the Company and constitute the
legal, valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws affecting creditors’ rights
generally, and except as the indemnification and contribution provisions thereof
may be limited under applicable laws and certain remedies may not be available
in the case of a non-material breach.
4. Each
of the Indenture, the Trust Agreement and the Guarantee Agreement has been
duly
authorized, executed and delivered by the Company, and is a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
5. The
Debentures have been duly authorized, executed and delivered by the Company,
are
entitled to the benefits of the Indenture and are legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
6. To
the best of our knowledge, neither the Company, the Trust, nor any of the
Subsidiaries is in breach or violation of, or default under, with or without
notice or lapse of time or both, its Articles of Incorporation or Charter,
By-Laws or other governing documents (including without limitation, the Trust
Agreement). The execution, delivery and performance of the Placement
Agreement and the Operative Documents and the consummation of the transactions
contemplated by the Placement Agreement and the Operative Documents do not
and
will not (i) result in the creation or imposition of any material lien,
claim, charge, encumbrance or restriction upon any property or assets of the
Company or the Subsidiaries, or (ii) conflict with, constitute a material
breach or violation of, or constitute a material default under, with or without
notice or lapse of time or both, any of the terms, provisions or conditions
of
(A) the Articles of Incorporation or Charter, By-Laws or other governing
documents of the Company or the Subsidiaries, or (B) to the best of our
knowledge, any material contract, indenture, mortgage, deed of trust, loan
or
credit agreement, note, lease, franchise, license or any other agreement or
instrument to which the Company or the Subsidiaries is a party or by which
any
of them or any of their respective properties may be bound or (C) any
order, decree, judgment, franchise, license, permit, rule or regulation of
any
court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, known to us having jurisdiction over the Company or the
Subsidiaries or any of their respective properties which, in the case of each
of
(i) or (ii) above, is material to the Company and the Subsidiaries on a
consolidated basis.
7. Except
for filings, registrations or qualifications that may be required by applicable
securities laws, no authorization, approval, consent or order of, or filing,
registration or qualification with, any person (including, without limitation,
any court, governmental body or authority) is required under the laws of the
State of Vermont in connection with the transactions contemplated by the
Placement Agreement and the Operative Documents in connection with the offer
and
sale of the Capital Securities as contemplated by the Placement Agreement and
the Operative Documents.
8. To
the best of our knowledge (i) no action, suit or proceeding at law or in
equity is pending or threatened to which the Company, the Trust or the
Subsidiaries are or may be a party, and (ii) no action, suit or proceeding
is pending or threatened against or affecting the Company, the Trust or the
Subsidiaries or any of their properties, before or by any court or governmental
official, commission, board or other administrative agency, authority or body,
or any arbitrator, wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on the consummation
of
the transactions contemplated by the Placement Agreement and the Operative
Documents or the issuance and sale of the Capital Securities as contemplated
therein or the condition (financial or otherwise), earnings, affairs, business,
or results of operations of the Company, the Trust and the Subsidiaries on
a
consolidated basis.
9. Assuming
the truth and accuracy of the representations and warranties of the Placement
Agents in the Placement Agreement and the Purchaser in the Subscription
Agreement, it is not necessary in connection with the offering, sale and
delivery of the Capital Securities, the Debentures and the Guarantee Agreement
(or the Guarantee) to register the same under the Securities Act of 1933, as
amended, under the circumstances contemplated in the Placement Agreement and
the
Subscription Agreement.
10. Neither
the Company nor the Trust is or after giving effect to the offering and sale
of
the Capital Securities and the consummation of the transactions described in
the
Placement Agreement will be, an “investment company” or an entity “controlled”
by an “investment company,” in each case within the meaning of the Investment
Company Act of 1940, as amended, without regard to Section 3(c) of such
Act.
The
opinion expressed in the first two sentences of numbered paragraph 1 of this
opinion is based solely upon certain certificates and confirmations issued
by
the applicable governmental officer or authority with respect to each of the
Company and the Significant Subsidiaries.
With
respect to the foregoing opinions, since no member of this firm is actively
engaged in the practice of law in the States of Delaware or New York, we do
not
express any opinions as to the laws of such states and have (i) relied,
with your approval, upon the opinion of Richards, Layton & Finger, P.A. with
respect to matters of Delaware law and (ii) assumed, with your approval and
without rendering any opinion to such effect, that the laws of the State of
New
York, in all respects material to this opinion, are substantively identical
to
the laws of the State of Vermont, without regard to conflict of law
provisions.
The
opinions expressed herein are rendered to you solely pursuant to
Section 3.1(a) of the Placement Agreement. As such, they may be
relied upon by you only and may not be used or relied upon by any other person
for any purpose whatsoever without our prior written consent.
Very
truly yours,
EXHIBIT
B-2
FORM
OF DELAWARE COUNSEL OPINION
To
Each
of the Persons
Listed
on
Schedule A Hereto
Re: CMTV
Statutory Trust I
Ladies
and Gentlemen:
We
have acted as special Delaware
counsel for CMTV Statutory Trust I, a Delaware statutory trust (the
“Trust”), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For
purposes of giving the opinions
hereinafter set forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The
Certificate of Trust of the Trust (the “Certificate of Trust”), as filed in the
office of the Secretary of State of the State of Delaware (the “Secretary of
State”) on October 25, 2007;
(b) The
Declaration of Trust, dated as of October 25, 2007, among Community Bancorp.,
a
Vermont corporation (the “Company”), Wilmington Trust Company, a Delaware
banking corporation (“WTC”), as trustee and the administrators named therein
(the “Administrators”);
(c) The
Amended and Restated Declaration of Trust of the Trust, dated as of
October 31, 2007 (including the form of Capital Securities Certificate
attached thereto as Exhibit A-1 and the terms of the Capital Securities attached
as Annex I) (the “Declaration of Trust”), among the Company, as sponsor, WTC, as
Delaware trustee (the “Delaware Trustee”) and institutional trustee (the
“Institutional Trustee”), the Administrators and the holders, from time to time,
of undivided beneficial interests in the assets of the Trust;
(d) The
Placement Agreement, dated October 30, 2007 (the “Placement Agreement”),
among the Company, the Trust, and FTN Financial Capital Markets and Keefe,
Bruyette & Woods, Inc., as placement agents;
(e) The
Subscription Agreement, dated October 31, 2007 (the “Subscription
Agreement”), among the Trust, the Company and First Tennessee Bank National
Association (the documents identified in items (c) through (e) being
collectively referred to as the “Operative Documents”);
(f) The
Capital Securities being issued on the date hereof (the “Capital
Securities”);
(g) The
Common Securities being issued on the date hereof (the “Common Securities”) (the
documents identified in items (f) and (g) being collectively referred to as
the
“Trust Securities”); and
(h) A
Certificate of Good Standing for the Trust, dated October 30, 2007,
obtained from the Secretary of State.
Capitalized
terms used herein and not
otherwise defined are used as defined in the Declaration of Trust, except that
reference herein to any document shall mean such document as in effect on the
date hereof. This opinion is being delivered pursuant to Section 3.1
of the Placement Agreement.
For
purposes of this opinion, we have
not reviewed any documents other than the documents listed in paragraphs (a)
through (h) above. In particular, we have not reviewed any document
(other than the documents listed in paragraphs (a) through (h) above) that
is
referred to in or incorporated by reference into the documents reviewed by
us. We have assumed that there exists no provision in any document
that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With
respect to all documents examined
by us, we have assumed (i) the authenticity of all documents submitted to us
as
authentic originals, (ii) the conformity with the originals of all documents
submitted to us as copies or forms, and (iii) the genuineness of all
signatures.
For
purposes of this opinion, we have
assumed (i) that the Declaration of Trust constitutes the entire agreement
among
the parties thereto with respect to the subject matter thereof, including with
respect to the creation, operation, and termination of the Trust, and that
the
Declaration of Trust and the Certificate of Trust are in full force and effect
and have not been amended further, (ii) that there are no proceedings pending
or
contemplated, for the merger, consolidation, liquidation, dissolution or
termination of the Trust, (iii) except to the extent provided in paragraph
1
below, the due creation, due formation or due organization, as the case may
be,
and valid existence in good standing of each party to the documents examined
by
us under the laws of the jurisdiction governing its creation, formation or
organization, (iv) that each party to the documents examined by us is qualified
to do business in each jurisdiction where such qualification is required
generally or necessary in order for such party to enforce its rights under
the
documents examined by us, (v) the legal capacity of each natural person who
is a
party to the documents examined by us, (vi) except to the extent set forth
in
paragraph 2 below, that each of the parties to the documents examined by us
has
the power and authority to execute and deliver, and to perform its obligations
under, such documents, (vii) except to the extent provided in paragraph 3 below,
that each of the parties to the documents examined by us has duly authorized,
executed and delivered such documents, (viii) the receipt by each Person to
whom
a Capital Security is to be issued by the Trust (the “Capital Security Holders”)
of a Capital Security Certificate for the Capital Security and the payment
for
the Capital Securities acquired by it, in accordance with the Declaration of
Trust and the Subscription Agreement, (ix) that the Capital Securities are
issued and sold to the Holders of the Capital Securities in accordance with
the
Declaration of Trust and the Subscription Agreement, (x) the receipt by the
Person (the “Common Securityholder”) to whom the common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
(the “Common Securities” and, together with the Capital Securities, the “Trust
Securities”) are to be issued by the Trust of a Common Security Certificate for
the Common Securities and the payment for the Common Securities acquired by
it,
in accordance with the Declaration of Trust, (xi) that the Common Securities
are
issued and sold to the Common Securityholder in accordance with the Declaration
of Trust, (xii) that each of the parties to the documents reviewed by us has
agreed to and received the stated consideration for the incurrence of its
obligations under such documents, (xiii) that each of the documents reviewed
by
us (other than the Declaration of Trust) is a legal, valid, binding and
enforceable obligation of the parties thereto in accordance with the terms
thereof and (xiv) that the Trust derives no income from or connected with
sources within the State of Delaware and has no assets, activities (other than
having a trustee and the filing of documents with the Secretary of State) or
employees in the State of Delaware. We have not participated in the
preparation of any offering materials with respect to the Trust Securities
and
assume no responsibility for its contents.
This
opinion is limited to the laws of
the State of Delaware (excluding the securities laws of the State of Delaware),
and we have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating
thereto. Our opinions are rendered only with respect to Delaware laws
and rules, regulations and orders thereunder that are currently in
effect.
We
express no opinion as to (i) the
effect of suretyship defenses, or defenses in the nature thereof, with respect
to the obligations of any applicable guarantor, joint obligor, surety,
accommodation party, or other secondary obligor or any provisions of the
Declaration of Trust with respect to indemnification or contribution and (ii)
the accuracy or completeness of any exhibits or schedules to the Operative
Documents. No opinion is given herein as to the choice of law or
internal substantive rules of law that any court or other tribunal may apply
to
the transactions contemplated by the Operative Documents.
We
express no opinion as to the
enforceability of any particular provision of the Declaration of Trust or the
other Operative Documents relating to remedies after default.
We
express no opinion as to the
enforceability of any particular provision of any of the Operative Documents
relating to (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or methods of)
service of process, or rights to trial by jury, or other rights or benefits
bestowed by operation of law, (iii) waivers of any applicable defenses, setoffs,
recoupments, or counterclaims, (iv) waivers or variations of provisions which
are not capable of waiver or variation under the Uniform Commercial Code (“UCC”)
of the State, (v) the grant of powers of attorney to any person or entity,
or
(vi) exculpation or exoneration clauses, indemnity clauses, and clauses relating
to releases or waivers of unmatured claims or rights.
We
have made no examination of, and no
opinion is given herein as to the Trustee’s or the Trust’s title to or other
ownership rights in, or the existence of any liens, charges or encumbrances
on,
or adverse claims against, any asset or property held by the Institutional
Trustee or the Trust. We express no opinion as to the creation,
validity, attachment, perfection or priority of any mortgage, security interest
or lien in any asset or property held by the Institutional Trustee or the
Trust.
We
express no opinion as to the effect
of events occurring, circumstances arising, or changes of law becoming effective
or occurring, after the date hereof on the matters addressed in this opinion
letter, and we assume no responsibility to inform you of additional or changed
facts, or changes in law, of which we may become aware.
We
express no opinion as to any
requirement that any party to the Operative Documents (or any other persons
or
entities purportedly entitled to the benefits thereof) qualify or register
to do
business in any jurisdiction in order to be able to enforce its rights
thereunder or obtain the benefits thereof.
Based
upon the foregoing, and upon our
examination of such questions of law and statutes of the State of Delaware
as we
have considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. 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,
etseq.) (the “Act”). 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.
2. Under
the Declaration of Trust and the Act, the Trust has the trust power and
authority to (A) execute and deliver the Operative Documents, (B) perform its
obligations under such Operative Documents and (C) issue the Trust
Securities.
3. The
execution and delivery by the Trust of the Operative Documents, 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.
4. The
Declaration of Trust constitutes a legal, valid and binding obligation of the
Company, the Trustees and the Administrators, and is enforceable against the
Company, the Trustees and the Administrators, in accordance with its
terms.
5. Each
of the Operative Documents constitutes a legal, valid and binding obligation
of
the Trust, enforceable against the Trust, in accordance with its
terms.
6. The
Capital Securities have been duly authorized for issuance by the Declaration
of
Trust, and, when duly executed and delivered to and paid for by the purchasers
thereof in accordance with the Declaration of Trust, the Subscription Agreement
and the Placement Agreement, the Capital Securities will be validly issued,
fully paid and, subject to the qualifications set forth in paragraph 8 below,
nonassessable undivided beneficial interests in the assets of the Trust and
will
entitle the Capital Securities Holders to the benefits of the Declaration of
Trust. The issuance of the Capital Securities is not subject to
preemptive or other similar rights under the Act or the Declaration of
Trust.
7. The
Common Securities have been duly authorized for issuance by the Declaration
of
Trust and, when duly executed and delivered to the Company as Common Security
Holder in accordance with the Declaration of Trust, will be validly issued,
fully paid and, subject to paragraph 8 below and Section 9.1(b) of the
Declaration of Trust (which provides that the Holder of the Common Securities
are liable for debts and obligations of Trust), nonassessable undivided
beneficial interests in the assets of the Trust and will entitle the Common
Security Holder to the benefits of the Declaration of Trust. The
issuance of the Common Securities is not subject to preemptive or other similar
rights under the Act or the Declaration of Trust.
8. Under
the Declaration of Trust and the Act, the Holders of the Capital Securities,
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. We note that the Holders of the Capital Securities and the
Holder of the Common Securities may be obligated, pursuant to the Declaration
of
Trust, (A) to provide indemnity and/or security in connection with and pay
taxes
or governmental charges arising from transfers or exchanges of Capital Security
Certificates and the issuance of replacement Capital Security Certificates,
and
(B) to provide security or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and powers under
the Declaration of Trust.
9. Neither
the execution, delivery and performance by the Trust of the Operative Documents,
nor the consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the authorization of, the
withholding of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of Delaware, other than
the filing of the Certificate of Trust with the Secretary of State (which
Certificate of Trust has been duly filed).
10. Neither
the execution, delivery and performance by the Trust of the Trust Documents,
nor
the consummation by the Trust of the transactions contemplated thereby, (i)
is
in violation of the Declaration of Trust or of any law, rule or regulation
of
the State of Delaware applicable to the Trust or (ii) to the best of our
knowledge, without independent investigation, violates, contravenes or
constitutes a default under, or results in a breach of or in the creation of
any
lien (other than as permitted by the Operative Documents) upon any property
of
the Trust under any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement, license or other
agreement or instrument to which the Trust is a party or by which it is
bound.
11. Assuming
that the Trust will not be taxable as a corporation for federal income tax
purposes, but rather will be classified for such purposes as a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986,
as
amended, the Trust will not be subject to any tax, fee or governmental charge
under the laws of the State of Delaware.
The
opinions expressed in paragraph 4,
5, 6, 7 and 8 above are subject, as to enforcement, to the effect upon the
Declaration of Trust of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and transfer, and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
Circular
230
Notice. Any advice contained in this communication with
respect to any federal tax matter was not intended or written to be used, and
it
cannot be used by any taxpayer, for the purpose of avoiding penalties that
the
Internal Revenue Service may impose on the taxpayer. If any such
advice is made to any person other than to our client for whom the advice was
prepared, the advice expressed above is being delivered to support the promotion
or marketing (by a person other than Richards, Layton & Finger) of the
transaction or matter discussed or referenced, and such taxpayer should seek
advice based on the taxpayer's particular circumstances from an independent
tax
advisor.
In
basing the opinions set forth herein
on “our knowledge,” the words “our knowledge” signify that no information has
come to the attention of the attorneys in the firm who are directly involved
in
the representation of the Trust in this transaction that would give us actual
knowledge that any such opinions are not accurate. Except as otherwise stated
herein, we have undertaken no independent investigation or verification of
such
matters.
Very
truly yours,
SCHEDULE
A
Wilmington
Trust Company
FTN
Financial Capital Markets
Keefe,
Bruyette & Woods, Inc.
First
Tennessee Bank National Association
Community
Bancorp.
EXHIBIT
B-3
TAX
COUNSEL OPINION ITEMS
1.
|
The
Debentures will be classified as indebtedness of the Company for
U.S.
federal income tax purposes.
|
2.
|
The
Trust will be characterized as a grantor trust and not as an association
taxable as a corporation for U.S. federal income tax
purposes.
|
Lewis,
Rice & Fingersh, L.C.
500
N.
Broadway, Suite 2000
St.
Louis, Missouri 63102
|
Re:
|
Representations
Concerning the Issuance of Junior Subordinated Deferrable Interest
Debentures (the “Debentures”) to CMTV Statutory Trust I (the “Trust”)
and Sale of Trust Securities (the “Trust Securities”) of the
Trust
|
Ladies
and Gentlemen:
In
accordance with your request,
Community Bancorp. (the “Company”) hereby makes the following representations in
connection with the preparation of your opinion letter as to the United States
federal income tax consequences of the issuance by the Company of the Debentures
to the Trust and the sale of the Trust Securities.
Company
hereby represents
that:
1. The
sole
assets of the Trust will be the Debentures, any interest paid on the Debentures
to the extent not distributed, proceeds of the Debentures, or any of the
foregoing.
2. The
Company intends to use the net proceeds from the sale of the Debentures for
general corporate purposes.
3. The
Trust
was not formed to conduct any trade or business and is not authorized to conduct
any trade or business. The Trust exists for the exclusive purposes of
(i) issuing and selling the Trust Securities, (ii) using the proceeds
from the sale of Trust Securities to acquire the Debentures, and
(iii) engaging only in activities necessary or incidental
thereto.
4. The
Company has not entered into an agency agreement with the Trust or authorized
the trustee to act as its agent in dealing with third parties. To Company’s
knowledge, after due inquiry, the Trust has not acted as the agent of the
Company or of anyone else in dealing with third parties.
5. The
Trust
was formed to facilitate direct investment in the assets of the Trust, and
the
existence of multiple classes of ownership is incidental to that purpose. There
is no intent to provide holders of such interests in the Trust with diverse
interests in the assets of the Trust.
6. The
Company intends to create a debtor-creditor relationship between the Company,
as
debtor, and the Trust, as a creditor, upon the issuance and sale of the
Debentures to the Trust by the Company. The Company will (i) record and at
all
times continue to reflect the Debentures as indebtedness on its separate books
and records for financial accounting purposes, and (ii) treat the Debentures
as
indebtedness for all United States tax purposes.
7. During
each year, the Trust’s income will consist solely of payments made by the
Company with respect to the Debentures. Such payments will not be derived from
the active conduct of a financial business by the Trust. Both the Company’s
obligation to make such payments and the measurement of the amounts payable
by
the Company are defined by the terms of the Debentures. Neither the Company’s
obligation to make such payments nor the measurement of the amounts payable
by
the Company is dependent on income or profits of Company or any affiliate of
the
Company.
8. The
Company expects that it will be able to make, and will make, timely payment
of
amounts identified by the Debentures as principal and interest in accordance
with the terms of the Debentures with available capital or accumulated
earnings.
9. The
Company presently has no intention to defer interest payments on the Debentures,
and it considers the likelihood of such a deferral to be remote because, if
it
were to exercise its right to defer payments of interest with respect to the
Debentures, it would not be permitted to declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any capital stock of the Company or any affiliate of the
Company (other than payments of dividends or distributions to the Company or
payments of dividends from direct or indirect subsidiaries of the Company to
their parent corporations, which also shall be direct or indirect subsidiaries
of the Company) or make any payment of principal of or interest or premium,
if
any, on or repay, repurchase, or redeem any debt securities of the Company
or
any affiliate of the Company that rank pari passu in all respects with
or junior in interest to the Debentures, in each case subject to limited
exceptions stated in Section 2.11 of the Indenture to be entered into in
connection with the issuance of the Debentures.
10. The
Company has no present intention (a) to take the position that a deferral of
interest payments on the Debentures is not a remote contingency, or (b) to
make
an explicit disclosure on the Company’s tax return, under Reg. § 1.1275-2(h)(5)
that its determination as holder with respect to remote contingency status
is
different from its determination as issuer.
11. Immediately
after the issuance of the Debentures, the debt-to-equity ratio of the Company
(as determined for financial accounting purposes, but excluding deposit
liabilities from the Company’s debt) will be within standard depository
institution industry norms and, in any event, will be no higher than four to
one
(4 : 1).
12. To
the
best of our knowledge, the Company is currently in compliance with all federal,
state, and local capital requirements, except to the extent that failure to
comply with any such requirements would not have a material adverse effect
on
the Company and its affiliates.
13. The
Company will not issue any class of common stock or preferred stock senior
to
the Debentures during their term.
14. The
Internal Revenue Service has not challenged the interest deduction on any class
of the Company’s subordinated debt in the last ten (10) years on the basis that
such debt constitutes equity for federal income tax purposes.
The
above representations are accurate
as of the date below and will continue to be accurate through the issuance
of
the Trust Securities, unless you are otherwise notified by us in writing. The
undersigned understands that you will rely on the foregoing in connection with
rendering certain legal opinions, and possesses the authority to make the
representations set forth in this letter on behalf of the Company.
Very
truly yours,
COMMUNITY
BANCORP.
Date:
October 30, 2007
|
By:
|
___________________________________
|
|
|
|
|
Title:
|
___________________________________
|
EXHIBIT
C
SIGNIFICANT
SUBSIDIARIES
Community
National Bank
EX-99.1
6
pressrelease.htm
PRESS RELEASE ISSUED ON NOVEMBER 1, 2007
pressrelease.htm
Exhibit
99.1
PRESS
RELEASE
Community
Bancorp. Completes $12.5 Million Trust Preferred Securities
Issuance
November
1, 2007
|
For
immediate release
|
For
more
information contact: Richard White or Steve Marsh at (802)-334-7915
Derby,
VT: Community Bancorp., the parent company of Community National Bank, announced
today that the Company completed a $12.5 million trust preferred securities
financing on October 31, 2007. The trust preferred securities were
issued by a newly established subsidiary of the Company, CMTV Statutory Trust
I,
a Delaware statutory business trust, to a pooling vehicle sponsored by FTN
Financial Capital Markets and Keefe, Bruyette & Woods, Inc. The
trust preferred securities, which are expected to qualify as Tier I capital
for
regulatory purposes up to applicable regulatory limitations, will bear a fixed
rate of interest of 7.56% for the first five years, followed by a floating
rate
equal to three-month LIBOR plus 2.85%. The securities are redeemable
at par by the Company in whole or in part after five years, or earlier under
certain circumstances. The Company intends to use the net proceeds
from the trust preferred securities financing to provide a portion of the
funding for its pending acquisition of LyndonBank, Lyndonville,
Vermont.
Richard
C. White, Chairman and Chief Executive Officer of Community Bancorp., stated,
“The trust preferred securities we issued today provide an excellent source
of
capital for our growing company. We believe the favorable treatment
of the trust preferred securities as regulatory capital further enhances the
strength of our Company.”
About
Community: Community Bancorp. is a registered bank holding
company and the parent company of Community National Bank, an independent bank
that has been serving its Vermont communities since 1851. Community National
has
offices in Derby, Derby Line, Island Pond, Barton, Newport, Troy, St. Johnsbury,
Montpelier and Barre, Vermont. In August, 2007 it announced plans to merge
with
LyndonBank. The combined institution will serve customers through a network
of
full service branches in northern and central Vermont, with LyndonBank branches
becoming branches of Community National, other than LyndonBank’s Vergennes,
Vermont branch, which will be sold to the National Bank of
Middlebury.
Forward-Looking
Statements: This press release contains forward-looking
statements. Although these statements are based on management’s
current expectations and estimates, actual conditions, results, earnings and
business may differ materially from those contemplated by such forward-looking
statements, as they could be influenced by numerous factors which are
unpredictable and outside the Company’s control. Factors that may
cause actual results to differ materially from such statements include, among
others, the following: (1) competitive pressures increase among financial
services providers in the Company’s northern New England market area or in the
financial services industry generally, including pressures from nonbank
financial service providers, from increasing consolidation and integration
of
financial service providers and from changes in technology and delivery systems;
(2) interest rate changes in such a way as to reduce the Company’s interest
margins and its funding sources; (3) general economic or monetary conditions,
either nationally or regionally, are less favorable than expected, resulting
in
a deterioration in credit quality or diminished demand for the Company’s
products and services; and (4) changes in laws or government rules, or the
way
in which courts interpret those laws or rules, adversely affect the Company’s
business or impose additional costs and regulatory
requirements.
GRAPHIC
7
logo.jpg
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