<PAGE>
As filed with the Securities and Exchange Commission on April 20, 1999.
Registration No. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
GBCI CAPITAL TRUST II
GOLD BANC CORPORATION, INC.
(Exact names of Registrants as specified in their charters)
--------------
Delaware Applied For
Kansas 48-1008593
(States or other jurisdictions of (I.R.S. Employer
incorporation or organization) Identification Nos.)
11301 Nall Avenue
Leawood, Kansas 66211
(913) 451-8050
(Address, including zip code, and telephone number, including area codes of
Registrants' principal executive office)
--------------
MICHAEL W. GULLION
Chief Executive Officer
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
(913) 451-8050
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
STEVEN F. CARMAN, ESQ. STEVEN KAPLAN, ESQ.
Blackwell Sanders Peper Martin LLP Arnold & Porter
Two Pershing Square Thurman Arnold Building
2300 Main Street, Suite 1000 555 Twelfth Street, N.W.
Kansas City, Missouri 64108 Washington, D.C. 20004-1202
(816) 983-8153 (202) 942-5998
Fax: (816) 983-9153 Fax: (202) 942-5999
--------------
Approximate date of commencement of proposed sale to the public: As soon as
possible after the Registration Statement becomes effective.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of each class of Amount maximum maximum Amount of
securities to be to be offering price aggregate registration
registered registered per unit* offering price* fee
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<S> <C> <C> <C> <C>
% Preferred
Securities of GBCI
Capital Trust II...... 1,610,000 $25.00 $40,250,000 $11,190
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% Junior
Subordinated Debentures
of Gold Banc
Corporation, Inc. (1).
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Guarantee of Gold Banc
Corporation, Inc. With
Respect to the
preferred securities
(2)...................
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</TABLE>
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* Estimated solely for the purpose of calculating the registration fee,
exclusive of accrued interest and dividends, if any.
(1) The junior subordinated debentures will be purchased by GBCI Capital Trust
II with the proceeds of the sale of the preferred securities. Such
debentures may later be distributed for no additional consideration to the
holders of the preferred securities upon dissolution of the Trust and
distribution of its assets.
(2) This Registration Statement is deemed to cover the guarantee. Pursuant to
Rule 457(n) under the Securities Act of 1933, no separate registration fee
is required for the guarantee.
The prospectus contained in this Registration Statement will be used for the
offering of the following securities: (1) % preferred securities of GBCI
Capital Trust II; (2) % junior subordinated debentures of Gold Banc
Corporation, Inc.; and (3) a guarantee of Gold Banc Corporation, Inc. of
certain obligations under the preferred securities.
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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<PAGE>
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION--DATED , 1999
GBCI Capital Trust II
Gold Banc Corporation, Inc.
----------
% preferred securities
Guaranteed as described in this prospectus by Gold Banc Corporation, Inc.
----------
% junior subordinated debentures
Gold Banc Corporation, Inc.--
. We are a multi-bank holding company that offers, through our subsidiaries,
a full range of community banking and related financial services to
customers in Kansas, Oklahoma and Missouri.
. We will purchase all of the common securities of the Trust.
. We have guaranteed the Trust's obligations under the preferred securities,
but only to the extent of funds held by the Trust.
The Trust--
. GBCI Capital Trust II is a Delaware business trust.
. We created the Trust for the limited purposes of issuing the common and
preferred securities, investing in the junior subordinated debentures, and
engaging in incidental activities.
The preferred securities--
. The preferred securities represent beneficial interests in the assets of
the Trust, which will include the junior subordinated debentures and
payments on the junior subordinated debentures.
. Holders of the preferred securities are entitled to cumulative
distributions at the annual rate of %.
. We have applied to have the preferred securities approved for quotation
under the proposed Nasdaq National Market symbol "GLDBO."
. The public offering price is $25 per preferred security.
. The Trust may redeem the preferred securities for cash or in exchange for
the junior subordinated debentures.
. If we defer interest payments on the junior subordinated debentures, the
Trust will defer distributions on the preferred securities.
The junior subordinated debentures--
. We will sell $ of our % junior subordinated debentures to the
Trust.
. The junior subordinated debentures are scheduled to mature on
, 2029, but we may shorten this date.
. We may defer interest payments on the junior subordinated debentures from
time to time.
<TABLE>
<CAPTION>
Price To Underwriting Proceeds
Public Discount To Trust
-------- ------------ --------
<S> <C> <C> <C>
Per Preferred Security........................... $
Total............................................ $
</TABLE>
In the table above, the price to the public includes accrued distributions,
if any, from , 1999. We, along with the Trust, have agreed to
indemnify the underwriters against certain liabilities, including certain
liabilities under the Securities Act of 1933. See "Underwriting." Because all
of the proceeds from the sale of the preferred securities will be used to
purchase the junior subordinated debentures, we have agreed to pay the
underwriters, as compensation, $ per preferred security or $ in
the aggregate ($ if the over-allotment option is exercised in full). See
"Underwriting." We have also agreed to pay the expenses of this offering,
estimated to be $ . We have also granted the underwriters a 30-day
option to purchase up to a maximum of additional preferred
securities to cover over-allotments, if any. If the over-allotment option is
exercised in full, the total price to public will be $ , the total
underwriting commission will be $ and the total proceeds to the Trust
will be $ . See "Underwriting."
Consider carefully the "risk factors" beginning on page in this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
Neither the preferred securities nor the junior subordinated debentures are
deposit accounts of any bank, and neither are insured to any extent by the
Federal Deposit Insurance Corporation or any other governmental agency.
The underwriters are offering the preferred securities subject to prior sale,
when, as and if delivered to and accepted by the underwriters. The underwriters
have the right to reject orders in whole or in part. The underwriters expect
that the Trust will deliver the preferred securities on or about , 1999.
Advest, Inc. U.S. Bancorp Piper Jaffray
Prospectus dated , 1999
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
<PAGE>
MAP
JOHNSON COUNTY, TULSA, PITTSBURG, ST. JOSEPH,
KANSAS OKLAHOMA KANSAS MISSOURI
(SHAWNEE AND Growing city of University-based Regional business
LEAWOOD) Suburb 760,000 people. economy and hub serving
of Kansas City Diversified regional trade northwest
and a county that economy, strong center for Missouri. Solid
has one of the in technology and southeast Kansas. economy with core
country's aviation. Firm strength in
fastest-growing Southeastern manufacturing manufacturing.
business sectors. Tulsa hosts base and small Metropolitan area
Population of thousands of business population of
417,000 and ranks small businesses. community. County 97,000.
in the top 1% of population of
counties in the 36,000 plus 6,400
nation in per students.
capita income
(based on 1996
Census Bureau
statistics).
Certain persons participating in this offering may engage in transactions
that stabilize, maintain, or otherwise affect the price of the preferred
securities being offered, including over-allotting shares of the preferred
securities and bidding for and purchasing such shares at a level above that
which otherwise might prevail in the open market. For a description of these
activities, see "Underwriting." Such stabilizing transactions, if commenced,
may be discontinued at any time. In connection with this offering, certain
underwriters (and selling group members) may engage in passive market making
transactions in the common shares on Nasdaq National Market in accordance with
Rule 103 of Regulation M. See "Underwriting."
<PAGE>
PROSPECTUS SUMMARY
This summary does not contain all of the information that may be important
to you. You should carefully read this prospectus, and all other information
that is incorporated by reference into this prospectus, in its entirety before
you decide to invest in the preferred securities.
Gold Banc Corporation, Inc.
Overview
We provide a full-range of community banking and related financial services
at 28 locations in Kansas, Oklahoma and Missouri. As a multi-bank holding
company, we own nine commercial banks, one federal savings bank, an investment
company, a trust company, a computer services business and an insurance agency.
Since December 1978, we have grown internally and through acquisitions from a
one bank holding company with $2.9 million in total assets to a bank holding
company with ten banks and four non-bank subsidiaries, with $1.1 billion in
total assets at December 31, 1998. A significant amount of our growth occurred
in 1998 during which time we acquired 6 banks operating in 12 locations with
$514.7 million in total assets. Our growth has been based on a community
banking strategy, which we believe our customers value because it combines a
focus on local communities with the breadth in product and service offerings of
a larger bank.
Community Banking Strategy
Our strategy is to build responsive community banking offices with local
decision making authority. To implement this strategy, each of our subsidiary
banks maintains its own distinct local identity, complete with local decision
makers who are empowered, with certain limitations, to make credit decisions.
We view each subsidiary bank president as the head of a financial services
center, where a primary focus is serving small to medium-sized businesses and
their owner-operators. These customers value one-stop shopping which we offer
through our bank subsidiaries. More than 80 percent of our loans in Johnson
County, Kansas and Tulsa, Oklahoma (our two largest markets) are provided to
local businesses. Each subsidiary bank maintains a local board of directors
that helps support the vital role our subsidiary banks play in identifying and
fulfilling the different needs of locally owned businesses in their respective
communities.
One of our goals is to create a more efficient organization within the
framework of our community banking philosophy. While each of our subsidiary
banks operates separately, we are centralizing certain management and
administrative functions, including data processing, human resources and
regulatory administration in order to take advantage of economies of scale.
Following our acquisition of CompuNet Engineering, Inc. in the first quarter of
1999, CompuNet will administer our consolidated back office operations,
including the operation of the data and call centers for all of our subsidiary
banks. We also provide direction for our subsidiary banks in areas of budgets,
asset/liability and investment portfolio management and credit review. We feel
centralizing these functions, which involve little contact with our customers,
will allow us to run our business more efficiently, help lower operating
expenses and enable our bank employees to focus on customer service and
community involvement.
Geographic Growth into Metropolitan Areas
While we continue to operate in select county seat towns, our market
strategy increasingly focuses on larger growing Midwestern suburbs and cities
and on serving the thousands of small-to-medium-sized businesses and their
owner operators located in these communities that are responsible for driving
much of this growth. Reflective of our increasing focus on
1
<PAGE>
vibrant metropolitan markets, as of December 31, 1998, approximately 66 percent
of our assets were deployed in four markets which support a large base of
small-to-medium sized businesses:
. Johnson County, Kansas;
. Tulsa, Oklahoma;
. Pittsburg, Kansas; and
. St. Joseph, Missouri.
We believe that a recent wave of acquisitions of local banks in these
communities by larger, more regional competitors and the conversion of these
bank franchises to branch locations of much larger entities which has resulted
in the elimination of local decision making have caused a number of customers
of these locations to become dissatisfied. This has created an opportunity for
us to attract and retain loan customers whose businesses require flexibility
and responsiveness in lending decisions and a more personalized banking
relationship.
Growth into Non-Bank Services
In addition to our growth in assets, deposits and geographic locations, we
have also expanded our product and service offerings as well. We provide more
than traditional deposit accounts and loans. Since the beginning of 1998, we
have added three non-bank businesses to further our objective of becoming a
complete financial services provider for small-to-medium sized businesses and
their owner operators and other customers. We now offer:
. Investment management and retail brokerage services through Midwest
Capital Management, Inc.;
. Business and personal insurance through Gold Banc Financial Services,
Inc.; and
. Trust services and employee benefit accounts, including 401(k) plans,
through The Trust Company.
In addition, through our acquisition of CompuNet, we now offer certain
technology services to financial institutions and other businesses. CompuNet
designs, implements, integrates and administers local and wide area computer
networks and also provides such technology services as Y2K compliance support,
Internet solutions and video conferencing.
Growth into New Technology
We continue to employ new technologies to serve and retain customers.
Through the use of two-way videoconferencing, our bank customers have the
opportunity to visit one-on-one with our non-bank professionals while in the
familiar convenience of their own local bank. During the second quarter of 1999
we expect to premier our Internet banking system which, in addition to our
Interactive Voice Response telephone system, allows our bank customers
convenient 24-hour remote access to their account information. We believe these
services are important to certain of our banking customers, including small-
business owners, and provide an opportunity to strengthen and develop
relationships with these customers.
Growth through Acquisitions
In addition to internal growth, we will continue to look for opportunities
to grow through acquisitions of community banks or non-bank providers of
financial services located in metropolitan areas and county seat towns in our
targeted market area. We believe that there will continue to be owners of small
community banks that will be interested in selling their banks to an
organization such as ours that has strong capital, a broad array of products
and services, management talent, and a committment to retaining the local
identities of its subsidiaries. Other reasons that banks may continue to be
willing to sell are a lack of liquidity in the stock of the company and an
increasing costs associated with upgrading technology and maintaining
compliance with bank regulations. We will continue to look to acquire banks
with strong existing management teams so that our strategies can be implemented
with the existing management structures, board of directors and bank charters
that are in place at these banks.
2
<PAGE>
Recent Developments
Exchange National Bank is a named defendant in a case styled Wilson v.
Olathe Bank, filed in the United States District Court for the District of
Kansas on September 11, 1997 on behalf of a putative class of over 2,400
persons who allegedly invested at least $14,900 each in entities known as a
Parade of Toys and Bandero Cigar Company. The complaint alleged violations of
the Racketeer Influenced Corrupt Organizations ("RICO") statute (18 U.S.C.
1962(c)), conspiracy to violate RICO, negligent misrepresentation, fraud, civil
conspiracy and negligence on the part of the defendents. The plaintiffs contend
that the defendants, including Exchange National Bank, were listed in trade
reference sheets provided to plaintiffs by Parade of Toys and Bandero Cigar
Company and that the defendants made false and misleading representations on
which the plaintiffs relied to their detriment. The Second Amended Complaint
seeks actual damages in the total amount of $13,551,559.72. It also prays for
punitive damages in a total amount of $27,103,119.44. On September 29, 1998 and
on March 11, 1999, the Court entered orders denying plaintiffs' successive
motions for class certification. Exchange National Bank has filed a motion for
summary judgment on plaintiff Wilson's claims. On April 1, 1999, plaintiff
Wilson moved to dismiss her claims without prejudice. On April 5, 1999, the
Court granted Wilson's motion to dismiss without prejudice. Defendants have
sought reconsideration of that order asserting that Wilson's claims should be
dismissed with prejudice.
A second lawsuit arising out of Parade of Toys styled Aaron v. Hillcrest
Bank, was filed in the United States District Court for the District of Kansas
on September 23, 1998 on behalf of 670 individually named persons. The
complaint names Exchange National Bank as a defendant and alleges similar
causes of action as the Wilson action. On April 5, 1999, the Court dismissed
the claims of plaintiffs Aaron and McCoy without prejudice.
On November 12, 1998, the federal district court ruled, in Wilson and Aaron,
that multiple plaintiffs could not join their claims in a single action. The
Court's orders provide, for the 676 plaintiffs other than Wilson, McCoy and
Aaron, that they must initiate a new action by April 30, 1999 or their claims
will be dismissed with prejudice. In response, plaintiffs have begun to
commence new individual actions in the District Court of Johnson County,
Kansas. To date, Exchange National Bank has been served with 24 petitions filed
on behalf of individual distributors. Each makes claims of fraud, negligent
misrepresentation, civil conspiracy, and negligence. The damages claim range
between $17,900 and $37,000. Exchange National Bank denies any liability and
intends to vigorously defend these and any additional claims.
Our principal executive office is located at 11301 Nall Avenue, Leawood,
Kansas 66211, and our telephone number is (913) 451-8050.
GBCI Capital Trust II
GBCI Capital Trust II is a Delaware statutory business trust that we created
for the limited purposes of:
. issuing the preferred securities and the common securities;
. investing the proceeds it receives from issuing the preferred securities
and the common securities in an equivalent amount of junior subordinated
debentures issued by us; and
. engaging in activities related to the activities described above.
The Trust will issue all of the preferred securities to the purchasers in
this offering. We will purchase all of the common securities. The common
securities will represent an aggregate liquidation amount equal to at least 3%
of the total capital of the Trust.
The junior subordinated debentures will be the only assets of the Trust, and
payments under the junior subordinated debentures will be the only revenue of
the Trust.
3
<PAGE>
The Trust will be governed by the trust agreement among us, as depositor,
Bankers Trust (Delaware), as Delaware trustee, and Bankers Trust Company, as
property trustee.
The principal executive office of the Trust is c/o Gold Banc Corporation,
Inc. at 11301 Nall Avenue, Leawood, Kansas 66211, and its telephone number is
(913) 451-8050.
The Offering
The Issuer................ GBCI Capital Trust II, a Delaware statutory
business trust.
The Securities that are
being Offered............. preferred securities having a
liquidation amount of $ per preferred
security. The preferred securities represent
preferred undivided beneficial interests in the
assets of the Trust, which will consist solely
of junior subordinated debentures. We will
guarantee payments on the preferred securities
to the extent of funds in the Trust. We have
granted the underwriters an option, exercisable
within 30 days after the date of the offering,
to purchase up to an additional
preferred securities at the initial offering
price, solely to cover over-allotments, if any.
The Offering Price........ $25 per preferred security.
The Payment of
Distributions............. The Trust will pay distributions to you on each
preferred security at an annual rate of
%. The distributions will be cumulative,
will accumulate from , 1999, and will be
payable in arrears at the end of each calendar
quarter, commencing , 1999.
Junior Subordinated
Debentures................ The Trust will invest the proceeds from the
issuance of the preferred securities and the
common securities in an equivalent amount of
our % junior subordinated debentures.
Maturity.................. The junior subordinated debentures are
scheduled to mature on , 2029
unless we shorten the maturity date. We will
not shorten the maturity date unless we have
received prior approval if it is then required
under the applicable regulatory requirements.
The Trust must redeem the preferred securities
when the junior subordinated debentures are
paid on the maturity date, or following any
earlier redemption of the junior subordinated
debentures.
We have the Option to
Extend the Interest
Payment Period........... At any time we are not in default under the
junior subordinated debentures, we may defer
payments of interest on the junior subordinated
debentures for up to 20 consecutive quarters, but
not beyond their stated maturity date. The Trust
would defer quarterly distributions on the
preferred securities while we are deferring payment
on the junior subordinated debentures. Deferred
quarterly distributions will accumulate additional
distributions at an annual rate of % compounded
quarterly.
During any period that we are deferring
interest payments, we may not declare or pay
any cash distributions on our capital stock or
debt
4
<PAGE>
securities that are of equal or lower rank than
the junior subordinated debentures. After the
end of any period in which we are deferring
interest payments, if we have paid all deferred
and current interest under the junior
subordinated debentures, we may defer interest
payments again. If we defer interest payments,
you will be required to include deferred
interest income in your gross income for United
States federal income tax purposes before you
have received deferred interest payments.
Redemption of the
Preferred Securities is
Possible................. The Trust may redeem the preferred securities
in whole or in part if we repay the junior
subordinated debentures. Subject to any
regulatory approval that may then be required,
we may redeem the junior subordinated
debentures prior to their scheduled maturity
(1) on or after , 2004, in whole at
any time or in part from time to time, or (2)
at any time, in whole, but not in part, within
90 days after:
. certain tax events occur or become likely to
occur;
. the Trust is or becomes likely to be deemed to
be an investment company; and
. there is a change in the regulatory capital
treatment of the preferred securities.
Upon any redemption of the junior subordinated
debentures we will use the cash proceeds of the
redemption to pay you a liquidation amount for
the preferred securities. The liquidation
amount you will receive will be $25 per
preferred security plus any accrued and unpaid
distributions to the date of redemption.
How the Securities will
rank in Right of
Payment.................. . The preferred securities will rank equally
with the common securities. The Trust will
pay distributions on the preferred securities
and the common securities pro rata. However,
if we
default by failing to pay interest payments on
the junior subordinated debentures then no
distributions on the common securities will be
paid until all accumulated and unpaid
distributions on the preferred securities have
been paid.
. Our obligations under the junior subordinated
debentures are unsecured and generally will
rank junior in priority to our senior and
other subordinated indebtedness. In late
1997, we created GBCI Capital Trust and
issued junior subordinated debentures to that
trust. The junior subordinated debentures we
will issue to the Trust will rank equally
with those junior subordinated debentures. If
we create any other trusts similar to the
Trust, then the junior subordinated
debentures will rank equally with any other
junior subordinated debentures we issue to
such trusts.
. Our obligations under the guarantee are
unsecured and will rank junior to our senior
and other subordinated indebtedness. The
guarantee we issue in this transaction will
rank equally with that
5
<PAGE>
guarantee relating to the preferred securities
issued by GBCI Capital Trust in late 1997. If
we issue any other guarantees in the future
relating to preferred securities issued by the
other trusts, then the guarantee issued in
this transaction will rank equally with the
other guarantees.
. Because we are a holding company, the junior
subordinated debentures and the guarantee
will effectively be subordinated to all
existing and future liabilities of our
subsidiaries.
The Junior Subordinated
Debentures May Be
Distributed to You....... Under certain circumstances and after we obtain
any necessary regulatory approvals, we may
dissolve the Trust. If we dissolve the Trust,
after satisfaction of any of the Trust's
liabilities to creditors, the Trust will
distribute your pro rata share of the junior
subordinated debentures to you in liquidation
of the Trust.
Our Guarantee of
Payments.................. We will fully and unconditionally guarantee the
preferred securities based on:
. our obligations to make payments on the junior
subordinated debentures;
. our obligations under a guarantee executed for
the benefit of the holders of the preferred
securities; and
. our obligations under the trust agreement.
If we do not make payments on the junior
subordinated debentures, the Trust will not
have sufficient funds to make payments on the
preferred securities. The guarantee does not
cover payments when the Trust does not have
sufficient funds.
Limited Voting Rights..... You will have no voting rights except in
limited circumstances.
The Use of Proceeds....... The Trust will invest all of the proceeds from
the sale of the preferred and the common
securities in our junior subordinated
debentures. We
intend to use the net proceeds from our sale of
the junior subordinated debentures to finance
growth, including future acquisitions if and
when suitable opportunities arise, repay
approximately $11.0 million of corporate
indebtedness and for general corporate
purposes. In addition, we are likely to
contribute a portion of the proceeds to one or
more of the subsidiary banks to support
internal growth opportunities. Initially, we
may invest the net proceeds not used to pay
down corporate indebtedness in short to medium
term investment securities.
Nasdaq National Market
Symbol.................... The proposed Nasdaq National Market symbol is
"GLDBO."
Book-entry................ The preferred securities will be represented by
a global security that will be deposited with
and registered in the name of The Depository
Trust Company, New York, New York, or its
nominee. This means that you will not receive a
certificate for your preferred securities.
ERISA Considerations...... You must carefully consider the information set
forth under "Certain ERISA Considerations."
Risk Factors
Before purchasing the preferred securities offered by this prospectus you
should carefully consider the "Risk Factors" beginning on page .
6
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following is our selected consolidated financial information. This
information has been restated to include acquisitions accounted for as poolings
of interests and per share information has been restated to reflect a two-for-
one stock split of our common stock in 1998. You should read this selected
consolidated financial information in conjunction with our consolidated
financial statements and notes that appear in our Annual Report on Form 10-K
for 1998 that is incorporated by reference into this prospectus. See "Where You
Can Find More Information."
<TABLE>
<CAPTION>
At or for the Years Ended December 31,
---------------------------------------------
1998 1997 1996 1995 1994
--------- ------- ------- ------- -------
(In thousands, except per share data and
ratios)
<S> <C> <C> <C> <C> <C>
Selected Results of Operations
Interest income................ 75,196 55,531 44,652 37,356 32,173
Interest expense............... 39,588 27,975 24,282 20,123 17,788
Net interest income............ 35,608 27,556 20,370 17,233 14,385
Provision for loan losses...... 2,781 2,130 1,262 1,812 581
Non-interest income............ 8,778 4,753 4,179 3,322 917
Non-interest expense........... 28,079 17,478 16,047 14,118 10,156
Net income (1)................. 9,122 8,295 4,906 3,105 3,132
Per Share Data
Net income (basic and diluted). 0.55 0.54 0.45 0.30 0.29
Book value..................... 4.88 4.19 3.47 2.69 2.23
Cash dividend (2).............. 0.075 0.045 -- -- --
Selected Balance Sheet Data
Total assets................... 1,111,356 824,464 632,561 532,044 453,065
Loans, net of unearned income.. 723,364 545,531 408,258 321,866 271,148
Allowance for loan losses...... 10,752 7,736 5,322 4,486 3,678
Investment securities.......... 229,520 164,534 148,637 140,984 138,967
Goodwill....................... 13,328 3,205 3,257 3,409 --
Deposits....................... 926,687 697,163 549,507 466,327 391,514
Long-term debt................. 78,708 35,174 7,074 14,973 14,631
Stockholders' equity........... 83,811 66,566 53,120 28,875 24,479
Performance Ratios
Return on average assets (1)... 0.93% 1.13% 0.85% 0.65% 0.74%
Return on average equity (1)... 11.59% 13.07% 13.63% 10.93% 13.47%
Efficiency ratio............... 67.50% 58.34% 69.80% 75.08% --
Net interest margin............ 4.11% 4.14% 3.95% 3.99% 3.83%
Net interest spread............ 3.67% 3.58% 3.52% 3.56% 3.45%
Dividend payout (2)............ 10.56% 7.03% -- -- --
Asset Quality Ratios
Allowance for loan losses to
non-performing loans.......... 290.59% 673.28% 752.76% 227.02% 361.65%
Net charge-offs to average
loans......................... 0.21% 0.10% 0.12% 0.34% 0.05%
Allowance for loan losses to
total loans................... 1.46% 1.40% 1.29% 1.37% 1.34%
Capital Ratios
Tier 1 risk-based capital ratio
(3)........................... 12.03% 14.11% 13.59% 6.93% 7.67%
Total risk-based capital ratio
(3)........................... 13.42% 15.41% 14.85% 8.19% 8.94%
Leverage ratio................. 8.80% 11.00% 8.14% 5.27% 5.14%
Ratio of Earnings to Fixed
Charges (4)
Including interest on deposits. 1.34x 1.45x 1.30x 1.23x 1.33x
Excluding interest on deposits. 3.90x 8.06x 4.72x 3.48x 4.15x
</TABLE>
- --------
(1) 1998 and 1997 net earnings and earnings per share of $9,122 and $8,295 and
$0.55 and $0.54, respectively, include pro forma adjustments for income
taxes related to the earnings of Citizens Bancorporation, Inc., a
Subchapter S corporation we acquired in 1998. Actual earnings and earnings
per share unadjusted for income taxes on Citizens' earnings for 1998 and
1997, were $11,919 and $9,874 and $0.71 and $0.64, respectively.
Additionally, the return on average assets and return on average equity
ratios are shown on a proforma basis to reflect an adjustment for income
taxes as Citizens' earnings for 1998 and 1997. Returns on average assets
for 1998 and 1997 on an actual basis were 1.22% and 1.35%, respectively.
Returns on average equity for 1998 and 1997 on an actual basis were 15.14%
and 15.56%, respectively.
(2) Prior to the second quarter of 1997, we had not paid cash dividends on
shares of our common stock. The dividends paid and dividend payout ratio do
not reflect a restatement of dividends paid prior to 1998 by entities we
acquired in pooling of interests transactions in 1998.
(3) Tier 1 risk-based and Total risk-based capital ratios for the years ended
1996, 1995 and 1994 are not restated to reflect subsidiaries we acquired in
pooling of interests transactions in 1998.
(4) The consolidated ratio of earnings to fixed charges has been computed by
dividing income before income taxes and fixed charges by fixed charges.
Fixed charges represent all interest expense. Ratios are presented both
excluding and including interest on deposits.
7
<PAGE>
RISK FACTORS
You should carefully consider the following risk factors before purchasing
the preferred securities offered by this prospectus. This prospectus contains
forward-looking statements that involve risk and uncertainties. You can
identify these forward-looking statements because they may include terms such
as "believes," "anticipates," "intends," "expects," or similar expressions, and
may include discussions of future strategy. We caution you not to rely unduly
on any forward-looking statements in this prospectus. Our actual results could
differ materially from the forward-looking statements. The risk factors
described below could cause or contribute to these differences and apply to all
forward-looking statements wherever they appear in this prospectus. However,
there could be other factors not listed below that may affect the Trust and us.
We may not update these risk factors or publicly announce revisions to forward-
looking statements contained in this prospectus.
Risk Factors Relating to the Preferred Securities
We will depend primarily on any dividends we may receive from our subsidiaries
in making payments under the junior subordinated debentures, which could affect
the payments made to you under the preferred securities.
The Trust will depend solely on our payments on the junior subordinated
debentures from us to pay amounts due to you on the preferred securities. We
are a separate legal entity from our subsidiaries and do not have significant
operations of our own. We will depend primarily on any dividends we receive
from our subsidiaries, which may be limited by regulations, and our cash and
liquid investments, to pay interest to the Trust on the junior subordinated
debentures.
Our obligations under the guarantee and the junior subordinated debentures are
subordinate to most of our other creditors.
Our obligations under the guarantee and the junior subordinated debentures
are unsecured and:
. are subordinate in right of payment to all of our existing and future
senior debt, subordinated debt and additional senior obligations, which
totaled $64,170 at December 31, 1998; and
. rank equally with our obligations associated with the outstanding
preferred securities of GBCI Capital Trust and any future issuances of
preferred securities.
Because we are a holding company, the creditors of our subsidiaries also
will have priority over us and you in any distribution of the subsidiaries'
assets in a liquidation, reorganization or otherwise, except to the extent that
we are recognized as a creditor of our subsidiaries. Therefore, the junior
subordinated debentures will be effectively subordinated to all existing and
future liabilities of our subsidiaries, and you should look only to our assets
for payments on the junior subordinated debentures.
We may defer interest payments under the junior subordinated debentures, which
could have adverse consequences for you.
So long as we are not in default under the junior subordinated debentures,
we may defer the payment of interest on the junior subordinated debentures at
any time or from time to time for up to 20 consecutive quarters. Any deferral,
however, cannot extend beyond the stated maturity date of the junior
subordinated debentures.
During any period in which we are deferring interest payments, the Trust
will defer quarterly distributions on the preferred securities, which will
accumulate with additional distributions at the annual rate of % compounded
quarterly from the relevant distribution payment date. During a deferral period
you will continue to accrue income (in the form of original issue discount) for
federal income tax purposes on the preferred
8
<PAGE>
securities, but you will not receive distributions attributable to that income.
In addition, during a deferral period, your tax basis in the preferred
securities will increase by the amount of accrued but unpaid distributions. If
you sell the preferred securities during a deferral period, your increased tax
basis will decrease the amount of any capital gain or increase the amount of
any capital loss that you may have otherwise realized on the sale. A capital
loss, except in certain limited circumstances, cannot be applied to offset
ordinary income. As a result, deferral of distributions could result in
ordinary income, and a related tax liability for the holder, and a capital loss
that may only be used to offset a capital gain.
The guarantee covers payments only if the Trust has cash available.
If we do not make payments on the junior subordinated debentures, the Trust
will not have sufficient funds to pay distributions or the $25 per preferred
security liquidation amount. Because the guarantee does not cover payments when
the Trust does not have sufficient funds, you will not be able to rely on the
guarantee for payment of these amounts. Instead, you or the property trustee
may enforce the rights of the Trust under the junior subordinated debentures
directly against us.
In certain circumstances the Trust may return your principal to you, which
would require you to reinvest your principal sooner than expected.
Under the following circumstances we may return your principal before the
stated maturity of the junior subordinated debentures:
. We may redeem all of the junior subordinated debentures in whole, but not
in part, prior to maturity within 90 days after certain occurrences at
any time during the life of the Trust. If we redeem the junior
subordinated debentures due to the occurrence of one of these events, the
Trust will redeem the preferred securities. You would receive the
redemption price.
. We may also at any time shorten the maturity of the junior subordinated
debentures to a date not earlier than , 2004. We may be
required to obtain regulatory approval before shortening the maturity of
the junior subordinated debentures.
. You should be aware that Congress in the future may enact legislation
that would adversely affect our ability to deduct the interest we pay on
the junior subordinated debentures or that otherwise results in
unfavorable tax consequences for us or the Trust. This legislation may
cause us to redeem the junior subordinated debentures and cause the Trust
to redeem the preferred securities.
If we redeem the junior subordinated debentures we would redeem the
preferred securities, and you may be required to reinvest your principal at a
time when you may not be able to earn a return that is as high as you were
earning on the preferred securities.
You will have only limited voting rights, and we can amend the trust agreement
without your consent.
You will have limited voting rights as a holder of the preferred securities.
Your voting rights will relate only to the modification of the preferred
securities and the exercise of the Trust's rights as holder of the junior
subordinated debentures. You will not usually be able to appoint, remove or
replace the property trustee or the Delaware trustee because these rights
generally reside with us as the holder of the common securities. However, if an
event of default under the trust agreement occurs and is continuing the holders
of at least a majority in aggregate liquidation amount of the preferred
securities may remove the trustees. Even if it would adversely affect your
rights, we, together with the property trustee and the trust administrators may
amend the trust agreement without your consent to ensure that the Trust will be
classified as a grantor trust for United States federal income tax purposes.
We can distribute the junior subordinated debentures to you, which may have
adverse tax consequences for you and which may affect the market price of the
preferred securities.
The Trust may be dissolved at any time before maturity of the junior
subordinated debentures on , 2029. As a result, and subject to the
terms of the trust agreement, the trustees may distribute the junior
subordinated debentures to the holders of the preferred securities.
9
<PAGE>
We cannot predict the market price for the junior subordinated debentures
that may be distributed. Accordingly, the junior subordinated debentures that
you receive upon a distribution, or the preferred securities you hold pending
such a distribution, may trade at a price that is less than you paid to
purchase the preferred securities. Because you may receive junior subordinated
debentures, you must also make an investment decision with regard to the junior
subordinated debentures. You should carefully review all of the information
regarding the junior subordinated debentures contained in this prospectus.
Under current United States federal income tax laws, a distribution of the
junior subordinated debentures to you upon the dissolution of the Trust would
not be a taxable event to you. Nevertheless, if the Trust is classified for
United States federal income tax purposes as an association taxable as a
corporation at the time it is dissolved, the distribution of the junior
subordinated debentures would be a taxable event to you. In addition, if there
is a change in law, a distribution of junior subordinated debentures upon the
dissolution of the Trust could be a taxable event to you.
The holders of the preferred securities and the junior subordinated debentures
are not protected by covenants in the indenture and the trust agreement.
Neither the indenture, which sets forth the terms of the junior subordinated
debentures, nor the trust agreement, which sets forth the terms of the
preferred securities and the common securities, protects holders of junior
subordinated debentures or the preferred securities, respectively, in the event
we experience significant adverse changes in our financial condition or results
of operations. In addition, neither the indenture nor the trust agreement
limits our ability or the ability of any subsidiary to incur additional
indebtedness. Therefore, the provisions of these governing instruments should
not be considered a significant factor in evaluating whether we will be able to
comply with our obligations under the junior subordinated debentures or the
guarantee.
The market price for the preferred securities may decline after you invest.
The market price for the preferred securities may decline during any period
that we are deferring interest payments on the junior subordinated debentures.
If this were the case, the preferred securities would not trade at a price that
accurately reflects the value of accrued but unpaid interest on the underlying
junior subordinated debentures.
There is no current public market for the preferred securities. We plan to
list the preferred securities on the Nasdaq National Market. There is no
guarantee that an active or liquid public trading market will develop for the
preferred securities or whether continued listing of the preferred securities
will be applicable on the Nasdaq National Market. Although the underwriters
have informed the Trust and us that they intend to make a market in the
preferred securities, they are not obligated to do so and any such market
making activity may be terminated at any time without notice. Even if an active
public market does develop, there is no guarantee that the market price for the
preferred securities will equal or exceed the price you pay for the preferred
securities.
The preferred securities are not insured.
Neither the Federal Deposit Insurance Corporation nor any other governmental
agency has insured the preferred securities.
Risk Factors Relating to the Company and Its Industry
It may be difficult for us to maintain our rapid growth.
We have completed several acquisitions in the past few years that have
significantly enhanced our rate of growth. We cannot be certain that we will
continue to sustain this rate of growth or grow at all. Competition for
suitable acquisition candidates is intense. We are targeting acquisition
candidates, particularly in the metropolitan and suburban areas, that a variety
of larger financial institutions are also interested in acquiring.
10
<PAGE>
We have reviewed potential acquisition candidates and held preliminary
discussions with several of these candidates. We cannot assure you that any of
these discussions will be successful. As a result, we may not be successful in
identifying acquisition candidates or be able to acquire banks and businesses
on terms we feel are favorable.
The rural market areas we now serve afford limited, if any, opportunities
for growth. We believe future growth in our earnings will depend, in addition
to acquisitions, on our growth in the metropolitan and suburban market areas
where we have branches. The financial institutions in these metropolitan and
suburban areas also compete intensely for assets and deposits. This competition
may adversely affect our ability to grow our asset and deposit base profitably.
We may experience difficulties in managing our growth.
As part of our general strategy, we may continue to acquire banks and
businesses that we believe provide a strategic fit with our business. To the
extent that we do grow, we cannot assure you that we will be able to adequately
and profitably manage such growth. Acquiring other banks and businesses will
involve risks commonly associated with acquisitions, including:
. potential exposure to liabilities of banks and businesses we acquire;
. difficulty and expense of integrating the operations and personnel of
banks and businesses we acquire;
. potential disruption to our business;
. potential diversion of our management's time and attention;
. impairment of relationships with and the possible loss of key employees
and customers of the banks and businesses we acquire; and
. incurrence of amortization expense if we account for an acquisition as a
purchase and dilution to our stockholders if we use our common stock as
consideration for the acquisition.
The loss of certain key personnel could adversely affect our operations.
Our success depends in large part on the retention of a limited number of
key persons, including:
. Michael W. Gullion, our Chairman and Chief Executive Officer;
. Malcolm M. Aslin, our President and Chief Operating Officer;
. Keith E. Bouchey, our Executive Vice President, Chief Financial Officer
and Corporate Secretary; and
. Joseph F. Smith, our Executive Vice President and Chief Technology
Officer.
We will likely undergo a difficult transition period if we lose the services
of any or all of these individuals. In recognition of this risk, we own and are
the beneficiary of an insurance policy on the life of Mr. Gullion providing
death benefits of $1.5 million and have entered into employment agreements with
Messrs. Gullion, Aslin, Bouchey and Smith.
We also place great value on the experience of the presidents of our
subsidiaries and the branches of our subsidiaries and on their relationships
with the communities they serve. The loss of these key persons could negatively
impact the affected banking locations. There is no assurance we will be able to
retain our current key personnel or attract additional qualified key persons as
needed.
Changes in the local economic conditions could adversely affect our loan
portfolio.
Our success depends to a certain extent upon the general economic conditions
of the local markets that we serve. Unlike larger banks that are more
geographically diversified, we provide banking and financial services to
customers in those markets in Kansas, Oklahoma and Missouri, including a number
of rural markets, where our subsidiary banks operate. Our commercial, real
estate and construction loans, and the ability of the
11
<PAGE>
borrowers to repay these loans and the value of the collateral securing these
loans, are impacted by the local economic conditions. In the rural markets we
serve the predominant economic sector is agriculture. Changes in the
agricultural economy may have an impact on our results of operations and
financial conditions. We cannot assure you that favorable economic conditions
will exist in such markets.
Our allowance for loan losses may not be adequate to cover actual loan losses.
As a lender, we are exposed to the risk that our customers will be unable to
repay their loans according to their terms and that any collateral securing the
payment of their loans may not be sufficient to assure repayment. Credit losses
are inherent in the lending business and could have a material adverse effect
on our operating results. Our credit risk with respect to our real estate and
construction loan portfolio relates principally to the general creditworthiness
of individuals and the value of real estate serving as security for the
repayment of loans. Our credit risk with respect to our commercial and consumer
installment loan portfolio relates principally to the general creditworthiness
of businesses and individuals within our local markets.
We make various assumptions and judgements about the collectability of our
loan portfolio and provide an allowance for potential losses based on a number
of factors. If our assumptions are wrong, our allowance for loan losses may not
be sufficient to cover our loan losses. We may have to increase the allowance
in the future. Material additions to our allowance for loan losses would
decrease our net income.
We may be unable to manage interest rate risks that could reduce our net
interest income.
Like other financial institutions, our results of operations are impacted
principally by net interest income which is the difference between interest
earned on loans and investments and interest expense paid on deposits and other
borrowings. We cannot predict or control changes in interest rates. Regional
and local economic conditions and the policies of regulatory authorities,
including monetary policies of the Federal Reserve, affect interest income and
interest expense. While we continually take measures intended to manage the
risks from changes in market interest rates, changes in interest rates can
still have a material adverse effect on our profitability.
We cannot predict how changes in technology will impact our business.
The financial services market, including banking services, is increasingly
affected by advances in technology, including developments in:
. telecommunications;
. data processing;
. automation;
. Internet-based banking;
. telebanking; and
. debit cards and so-called "smart cards."
Our ability to compete successfully in the future will depend on whether we
can anticipate and respond to technological changes. To develop these and other
new technologies we will likely have to make additional capital investments.
Although we continually invest in new technology, we cannot assure you that we
will have sufficient resources or access to the necessary proprietary
technology to remain competitive in the future.
The banking business is highly competitive.
We operate in a competitive environment. In the metropolitan and suburban
areas in which we compete, other commercial banks, savings and loan
associations, credit unions, finance companies, mutual funds, insurance
companies, and brokerage and investment banking firms and other financial
intermediaries offer
12
<PAGE>
similar services. We also face competition in our rural markets. Many of these
competitors have substantially greater resources and lending limits and may
offer certain services our subsidiary banks and businesses do not currently
provide. In addition, some of the nonbank competitors are not subject to the
same extensive regulations that govern our subsidiary banks and businesses. Our
profitability depends upon the ability of our subsidiaries to compete in our
primary market areas.
Our operations may be adversely affected if we, or certain persons with whom we
do business, fail to adequately address the Year 2000 issue.
Certain of our older computer programs identify years with two digits
instead of four. If not remedied, this is likely to cause problems because
these programs may recognize the year 2000 as the year 1900. As with other
financial institutions, we engage in a significant amount of business and
reporting activity that depends on accurate date information, such as
calculation of interest and other calculations pertaining to loans, deposits,
assets and investments. As a result, Year 2000 problems could result in a
system failure or miscalculations that disrupt our operations. We continue to
address these issues as they relate to our subsidiaries and corporate systems
and are in the implementation phase of our preparations for the year change
from 1999 to 2000.
The process of remediating, the costs of remediating or failing to remediate
Year 2000 issues may be more burdensome than we anticipate. In addition, it is
possible that Year 2000 issues could have a material adverse affect on:
. our service providers and their ability to provide us services, including
Bankline MidAmerica, Inc. which provides a data processing system that
most of our subsidiary banks have converted to or are scheduled to
convert to before December 31, 1999, and
. our customers, their businesses, and their ability to repay loans.
The cumulative effect of such problems, if they occur, could adversely
effect our operations. For a more detailed discussion of our Year 2000
initiatives see the disclosure under "Year 2000 Initiatives" in our annual
report on Form 10-K for the year ended December 31, 1998, which has been
incorporated by reference into this prospectus.
We are subject to extensive regulation.
The banking industry is heavily regulated under both federal and state law.
These regulations are primarily intended to protect depositors and the FDIC,
not our creditors or stockholders. Our nonbank subsidiaries are also subject to
the supervision of the Federal Reserve Board, in addition to other regulatory
and self-regulatory agencies including the Securities and Exchange Commission,
the National Association of Securities Dealers, and state securities and
insurance regulators. Regulations affecting banks and financial services
businesses are undergoing continuous change, and the ultimate effect of such
changes cannot be predicted. Regulations and laws may be modified at any time,
and new legislation may be enacted that affects us, our subsidiary banks or our
nonbank subsidiaries. We cannot assure you that such modifications or new laws
will not adversely affect us.
Our subsidiary banks may be forced to pay for any losses the Federal Deposit
Insurance Corporation incurs if it provides assistance to any of our other
subsidiary banks.
Federal law contains a "cross guarantee" provision that could require any of
our insured subsidiary banks to pay for losses incurred by the Federal Deposit
Insurance Corporation if it provides assistance to another of our insured
subsidiary banks or in the event a subsidiary bank fails. If another of our
subsidiary banks is assessed for any assistance the Federal Deposit Insurance
Corporation may provide, such assessment could materially effect that
subsidiary bank's financial condition as well as ours.
13
<PAGE>
USE OF PROCEEDS
All the proceeds to the Trust from the sale of the preferred securities will
be invested by the Trust in the junior subordinated debentures. The net
proceeds we receive from the sale of the junior subordinated debentures, which
we estimate to be approximately $ ($ if the over-allotment
option is exercised in full), will be used:
. for financing growth, which may include one or more branch acquisitions,
acquisitions of other financial institutions, or acquisitions of other
financial services companies;
. to repay approximately $11.0 million of corporate indebtedness under an
outstanding line of credit subject to an interest rate equal to 1.75%
plus LIBOR; and
. for general corporate purposes.
In addition, we are likely to contribute a portion of the proceeds to one or
more of the banks to support internal growth opportunities. Pending any such
use, we will invest the net proceeds in short to medium-term investments. The
precise amounts and timing of the application of proceeds will depend upon our
and our subsidiaries' funding requirements and the availability of other funds.
Under the risk-based capital adequacy guidelines established by the Federal
Reserve, capital we receive from the proceeds of the sale of the Trust's
preferred securities, plus the proceeds from the prior sale of preferred
securities by GBCI Capital Trust, cannot constitute more than 25% of our total
Tier 1 capital. Amounts in excess of this 25% capital limitation will
constitute Tier 2, or supplemental capital and therefore will be included in
total risk-based capital. None of the preferred securities of the Trust will
initially be included in our Tier 1 capital due to this limitation. However,
the full amount will be included in our total risk-based capital.
14
<PAGE>
CAPITALIZATION
The following table sets forth (1) our consolidated capitalization at
December 31, 1998, (2) our consolidated capitalization giving effect to the
issuance of the preferred securities, and (3) actual and pro forma capital
ratios. The table assumes application of the net proceeds from the
corresponding sale of the junior subordinated debentures to the Trust as if the
sale of the preferred securities had been consummated on December 31, 1998, and
as if the underwriters' over-allotment was not exercised.
<TABLE>
<CAPTION>
At December 31, 1998
------------------------------
As Adjusted For the
Sale of
Actual preferred securities
-------- --------------------
(Unaudited)
(Dollars in thousands)
<S> <C> <C>
Guaranteed preferred beneficial interests in our
subordinated debt(1)........................... $ 28,750 $ 63,750
Stockholders' Equity
Preferred stock no par value, 25,000,000
shares authorized, none issued............... -- --
Common stock no par value, 25,000,000 shares
authorized; 17,181,618 shares issued and
outstanding.................................. 17,182 17,182
Retained earnings............................. 37,235 37,235
Additional paid in capital.................... 29,200 29,200
Accumulated other comprehensive income........ 391 391
Unearned compensation......................... (197) (197)
-------- --------
Total stockholders' equity.................. 83,811 83,811
-------- --------
Total capitalization........................ $112,561 $147,561
======== ========
Company Capital Ratios(2):
Equity to total assets........................ 7.54% 7.31%
Tier 1 risk-based capital ratio(3)(4)......... 12.03% 11.90%
Total risk-based capital ratio(3)(4).......... 13.42% 18.42%
Leverage ratio................................ 8.80% 8.80%
</TABLE>
- --------
(1) Includes: (a) the Trust's preferred securities representing beneficial
interests in an aggregate principal amount of $35,000,000 of our %
junior subordinated debentures (not including the $5,250,000 aggregate
principal amount of junior subordinated debentures to be purchased in the
event the underwriters exercise their over-allotment option) that will
mature on , 2029; and (b) GBCI Capital Trust's preferred
securities representing beneficial interests in an aggregated principal
amount of $28,750,000 of our 8.75% junior subordinated debentures that will
mature on December 31, 2027.
(2) The capital ratios, as adjusted, are computed including the total estimated
proceeds from the sale of the preferred securities in a manner consistent
with Federal Reserve guidelines.
(3) Federal Reserve guidelines for calculation of Tier 1 capital limit the
amount of cumulative preferred stock which can be included in Tier 1
capital to 25% of total Tier 1 capital. None of the preferred securities
will initially be included in Tier I capital due to this limitation.
However, the full amount will be included in total risk based capital.
(4) Assumes net proceeds of the offering of the preferred securities are
invested in assets with a 20% risk weighting under the risk-based capital
rules of the Federal Reserve.
15
<PAGE>
GBCI CAPITAL TRUST II
The Trust is a statutory business trust created under Delaware law pursuant
to the filing of a Certificate of Trust with the Delaware Secretary of State on
, 1999. The Trust will be governed by the trust agreement among us, as
depositor, Bankers Trust (Delaware), as Delaware trustee, and Bankers Trust
Company, as property trustee. We will select two individuals to act as
administrators with respect to the Trust. While we hold the common securities,
we intend to select two individuals who are our employees or officers or
affiliated with us to serve as the administrators. See "Description of
Preferred Securities--Miscellaneous." The Trust exists for the exclusive
purposes of:
. issuing and selling the preferred and the common securities;
. using the proceeds from the sale of the preferred securities and the
common securities to acquire the junior subordinated debentures; and
. engaging in only those other activities necessary, convenient or
incidental thereto (such as registering the transfer of the preferred
securities and the common securities).
Accordingly, the junior subordinated debentures will be the sole assets of the
Trust, and payments under the junior subordinated debentures will be the sole
source of revenue of the Trust.
We will own all of the common securities. The common securities will rank
equally, and payments on them will be made pro rata, with the preferred
securities, except that upon the occurrence and during the continuation of an
event of default under the junior subordinated debentures arising as a result
of our failure to pay any amounts in respect of the junior subordinated
debentures when due, our rights as the holder of the common securities to
payment in respect of distributions and payments upon liquidation, redemption
or otherwise will be subordinated to the rights of the holders of the preferred
securities. See "Description of Preferred Securities--Subordination of Common
Securities." We will acquire common securities in an aggregate liquidation
amount equal to 3% of the total capital of the Trust. The Trust has a term of
30 years, but may terminate earlier as provided in the trust agreement.
The address of the Delaware trustee is Bankers Trust (Delaware), 1101 Centre
Road, Suite 200, Trust Department, Wilmington, Delaware 19805, and the
telephone number is (302) 636-3301.
The address of the property trustee, the guarantee trustee and the debenture
trustee is Bankers Trust Company, Four Albany Street, 4th Floor, New York, New
York 10006, and the telephone number is (212) 250-2500.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as our
subsidiary and, accordingly, the accounts of the Trust will be included in our
consolidated financial statements. The preferred securities will be included in
the consolidated balance sheets and appropriate disclosures about the preferred
securities, the guarantee and the junior subordinated debentures will be
included in the notes to our consolidated financial statements. For financial
reporting purposes, we will record distributions on the preferred securities in
our consolidated statements of earnings.
DESCRIPTION OF PREFERRED SECURITIES
The Trust will issue the preferred securities and the common securities
under the Trust Agreement for the Trust. The preferred securities will
represent preferred undivided beneficial interests in the assets of the Trust
and you will be entitled a preference in certain circumstances with respect to
distributions and amounts payable on redemption or liquidation over the common
securities, as well as other benefits as described in the trust agreement.
16
<PAGE>
This summary of certain provisions of the preferred securities and the trust
agreement is not complete. You should read the form of the trust agreement,
which is filed as an exhibit to the registration statement of which this
prospectus is a part. Wherever particular defined terms of the trust agreement
are referred to in this prospectus, such defined terms are incorporated herein
by reference. A copy of the form of the trust agreement is also available upon
request from the trustees.
General
The preferred securities will be limited to $ aggregate liquidation
amount (as defined in the trust agreement) outstanding (which amount may be
increased by up to $ aggregate liquidation amount of preferred
securities for exercise of the underwriters' over-allotment option). See
"Underwriting." The preferred securities will rank equally, and payments will
be made pro rata, with the common securities except as described under "--
Subordination of Common Securities." The junior subordinated debentures will be
registered in the name of the Trust and held by the property trustee in trust
for your benefit and the benefit of the holders of the common securities. The
guarantee we will execute for the benefit of the holders of the preferred
securities will be a guarantee on a subordinated basis with respect to the
preferred securities but will not guarantee payment of distributions or amounts
payable on redemption or liquidation of the preferred securities when the Trust
does not have funds on hand available to make such payments. See "Description
of Guarantee."
Distributions
You will receive distributions on each preferred security at the annual rate
of % of the stated liquidation amount of $ , payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year, to
record holders at the close of business on the 15th day of March, June,
September and December (whether or not a business day) next preceding the
relevant distribution date. Each date on which distributions will be paid is
referred to as a distribution date in this prospectus. Distributions on the
preferred securities will be cumulative. Distributions will accumulate from
, 1999. The first distribution date for the preferred securities will
be , 1999. The amount of distributions payable for any period less
than a full distribution period will be computed on the basis of a 360-day year
of twelve 30-day months and the actual days elapsed in a partial month in such
period. Distributions payable for each full distribution period will be
computed by dividing the annual rate by four. If any date on which
distributions are payable is not a business day, then payment will be made on
the next succeeding day that is a business day (without any additional
distributions or other payment because of the delay), except that, if such
business day falls in the next calendar year, the payment will be made on the
immediately preceding business day.
So long as no debenture event of default has occurred and is continuing, we
have the right to defer the payment of interest on the junior subordinated
debentures at any time or from time to time for an "extension period" not
exceeding 20 consecutive quarterly periods with respect to each extension
period, provided that no extension period may extend beyond the maturity date
of the junior subordinated debentures. As a consequence of any such deferral,
quarterly distributions on the preferred securities will be deferred during the
extension period. Distributions to which you are entitled will accumulate
additional distributions thereon at the annual rate of %, compounded
quarterly from the relevant payment date, computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed in a partial month in
such period. Additional distributions payable for each full distribution period
will be computed by dividing the annual rate by four.
During any extension period, we may not (1) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of our capital stock or (2) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any of our
debt securities that rank equally in all respects with or junior in interest to
the junior subordinated debentures, including our obligations associated with
the outstanding preferred securities of GBCI Capital Trust. These prohibitions,
however, do not apply to:
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. repurchases, redemptions or other acquisitions of our capital stock, in
connection with any employment contract, benefit plan or other similar
arrangement, a dividend reinvestment or stockholder stock purchase plan
or the issuance of our capital stock (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable extension period;
. a reclassification exchange or conversion of any class or series of our
capital stock (or any capital stock of our subsidiaries) for any class or
series of our capital stock or of any class or series of our indebtedness
for any class or series of our capital stock;
. the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged;
. 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; or
. 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 equally with or junior to such stock.
Before the end of an extension period, we may further defer the payment of
interest. No extension period may exceed 20 consecutive quarterly periods or
extend beyond the maturity date of the junior subordinated debentures. Upon the
termination of an extension period and the payment of all amounts then due, we
may elect to begin a new extension period. No interest shall be due during an
extension period, except at the end of the extension period. We must give the
trustees notice of our election of an extension period at least one business
day prior to the earlier of (1) the date the distributions on the preferred
securities would have been payable but for the election to begin the extension
period and (2) the date the property trustee is required to give you notice of
the record date or the date the distributions are payable, but in any event not
less than one business day prior to the record date. The property trustee will
give you notice of our election to begin a new extension period. Subject to the
foregoing, there is no limitation on the number of times that we may elect to
begin an extension period. See "Description of Junior Subordinated Debentures--
Option To Extend Interest Payment Period" and "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
We currently do not intend to exercise our right to defer payments of
interest by extending the interest payment period on the junior subordinated
debentures.
The revenue of the Trust available for distribution to you will be limited
to payments under the junior subordinated debentures in which the Trust will
invest the proceeds from the issuance and sale of the preferred securities. See
"Description of Junior Subordinated Debentures." If we do not make payments on
the junior subordinated debentures, the Trust may not have funds available to
pay distributions or other amounts payable on the preferred securities. The
payment of distributions and other amounts payable on the preferred securities
(if and to the extent the Trust has funds legally available for and cash
sufficient to make such payments) is guaranteed by us on a limited basis as set
forth herein under "Description of Guarantee."
Redemption
If we repay or redeem the junior subordinated debentures, we must give the
property trustee not less than 30 nor more than 60 days' notice in order that
it can redeem a proportionate amount of the preferred and common securities.
The redemption price for each preferred security shall equal $25 plus
accumulated but unpaid distributions on the redemption date and the related
amount of the premium, if any, paid by us upon the concurrent redemption of
such junior subordinated debentures. See "Description of Junior Subordinated
Debentures--Redemption." If less than all the junior subordinated debentures
are to be repaid or redeemed on a redemption date, then the proceeds from the
repayment or redemption shall be allocated to the redemption pro rata of the
preferred securities and the common securities.
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We may redeem the junior subordinated debentures (1) on or after ,
2004 in whole at any time or in part from time to time, or (2) in whole, but
not in part, at any time within 90 days following the occurrence and during the
continuation of a Tax Event, Investment Company Event or Capital Treatment
Event (each as defined below), in each case subject to possible regulatory
approval. See "--Liquidation Distribution Upon Dissolution." A redemption of
the junior subordinated debentures would cause a mandatory redemption of a
proportionate amount of the preferred securities and common securities at the
redemption price.
"Tax Event" means the receipt by the Trust of an opinion of our counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including an announced prospective change) in, the laws (or any
regulations thereunder) of the United States or an political subdivision or
taxing authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the preferred securities, there is more than an insubstantial risk that:
. the Trust is, or will be within 90 days of the delivery of such opinion,
subject to United States federal income tax with respect to income
received or accrued on the junior subordinated debentures;
. interest payable by us on the junior subordinated debentures is not, or
within 90 days of the delivery of such opinion will not be, deductible by
us, in whole or in part, for United States federal income tax purposes;
or
. the Trust is, or will be within 90 days of the delivery of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
See "Certain Federal Income Tax Consequences--Pending Tax Litigation Affecting
the Preferred Securities" for discussion of pending United States Tax Court
litigation that, if decided adversely to the taxpayer, could give rise to a Tax
Event, that may permit us to redeem the junior subordinated debentures prior to
, 2004.
If a Tax Event described in the first or third circumstances above has
occurred and is continuing and the Trust holds of all the junior subordinated
debentures, we will pay on the junior subordinated debentures any additional
amounts as may be necessary in order that the amount of distributions then due
and payable by the Trust on the outstanding preferred securities and common
securities of the Trust will not be reduced as a result of any additional
taxes, duties and other governmental charges to which the Trust has become
subject as a result of a Tax Event.
"Investment Company Event" means the receipt by the Trust of an opinion of
our counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a 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 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 preferred securities.
"Capital Treatment Event" means the reasonable determination by us that, as
a result of the occurrence of any amendment to, or change (including any
announced prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or
decision, is announced on or after the date of issuance of the preferred
securities, there is more than an insubstantial risk that we will not be
entitled to treat an amount equal to $ , the liquidation amount of the
preferred securities, as Tier 1 Capital (or the then equivalent thereof),
except as otherwise restricted by the Federal Reserve, for purposes of the
risk-based capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable
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to us. The Federal Reserve has determined that the proceeds of certain
qualifying securities like the preferred securities will qualify as Tier I
capital for us only up to an amount not to exceed, when taken together with all
of our cumulative preferred stock, if any, 25% of our Tier 1 capital.
Redemption Procedures
Preferred securities redeemed on each redemption date shall be redeemed at a
price equal to $ plus accumulated but unpaid distributions, with the
applicable proceeds from the contemporaneous redemption of the junior
subordinated debentures. Redemptions of the preferred securities will be made
and the redemption price will be payable on each redemption date only to the
extent that the Trust has funds on hand available for the payment of such
redemption price. See also "--Subordination of Common Securities."
If the Trust gives you notice of redemption of the preferred securities,
then, by 12:00 noon, Eastern time, on the redemption date, to the extent funds
are available, in the case of preferred securities held in book-entry form, the
property trustee will deposit irrevocably with The Depository Trust Company
funds sufficient to pay the applicable redemption price and will give DTC
irrevocable instructions and authority to pay the redemption price to you. With
respect to preferred securities not held in book-entry form, the property
trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for the preferred securities funds sufficient to pay the
applicable redemption price and will give the paying agent irrevocable
instructions and authority to pay the redemption price to you once you
surrender your certificates evidencing the preferred securities.
Notwithstanding the foregoing, distributions payable on or prior to the
redemption date for any preferred securities called for redemption will be
payable to you on the relevant record dates for the related distribution dates.
If notice of redemption is given and funds are deposited as required, then
upon the date of such deposit all of your rights with respect to your preferred
securities so called for redemption will cease, except your right to receive
the redemption price and any distributions payable in respect of the preferred
securities on or prior to the redemption date, but without interest, and
preferred securities that are redeemed will cease to be outstanding. If any
date fixed for redemption of preferred securities is not a business day, then
payment of the redemption price payable on such date will be made on the next
succeeding day which is a business day (without any interest or other payment
in respect of any such delay), except that, if such business day falls in the
next calendar year, such payment will be made on the immediately preceding
business day. In the event that payment of the redemption price for the
preferred securities called for redemption is improperly withheld or refused
and not paid either by the Trust or by us pursuant to the guarantee as
described under "Description of Guarantee," distributions on such preferred
securities will continue to accumulate at the then applicable rate, from the
redemption date originally established by the Trust for such preferred
securities to the date such redemption price is actually paid, in which case
the actual payment date will be the date fixed for redemption for purposes of
calculating the redemption price.
Subject to applicable law (including, without limitation, United States
federal securities laws), we or our affiliates may at any time and from time to
time purchase outstanding preferred securities by tender, in the open market or
by private agreement, and may resell such securities.
If less than all the preferred securities and common securities are to be
redeemed on a redemption date, then the aggregate liquidation amount of such
preferred securities and common securities to be redeemed shall be allocated
pro rata to the preferred securities and the common securities based upon the
relative liquidation amounts of such classes. The particular preferred
securities to be redeemed shall be selected on a pro rata basis not more than
60 days prior to the redemption date by the property trustee from the
outstanding preferred securities not previously called for redemption, or in
accordance with DTC's customary procedures if the preferred securities are then
held in the form of a global preferred security in accordance with DTC's
customary practices. The property trustee shall promptly notify the securities
registrar for the preferred securities in writing of the preferred securities
selected for redemption and, in the case of any preferred securities selected
for partial redemption, the liquidation amount of the preferred securities to
be redeemed. For
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all purposes of the trust agreement, unless the context otherwise requires, all
provisions relating to the redemption of preferred securities shall relate, in
the case of any preferred securities redeemed or to be redeemed only in part,
to the portion of the aggregate liquidation amount of preferred securities
which has been or is to be redeemed.
Notice of any redemption will be mailed to you at your address as it appears
on the securities register for the Trust at least 30 days but not more than 60
days before the redemption date if your preferred securities will be redeemed.
Unless we default in payment of the redemption price on the junior subordinated
debentures, on and after the redemption date interest will cease to accrue on
the junior subordinated debentures or portions thereof called for redemption.
Unless payment of the redemption price in respect of the preferred securities
is withheld or refused and not paid either by the Trust or us pursuant to the
guarantee, distributions will cease to accumulate on the preferred securities
or portions thereof called for redemption.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, and the
liquidation distribution in respect of, the preferred securities and common
securities, as applicable, shall be made pro rata based on the liquidation
amount of such preferred securities and common securities. However, if on any
distribution date or redemption date a debenture event of default has occurred
and is continuing as a result of any failure by us to pay any amounts in
respect of the junior subordinated debentures when due, no payment of any
distribution on, or redemption price of, or liquidation distribution in respect
of, any of the common securities, and no other payment on account of the
redemption, liquidation or other acquisition of such common securities, shall
be made unless payment in full in cash of all accumulated and unpaid
distributions on all the outstanding preferred securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
redemption price, the full amount of such redemption price on all the
outstanding preferred securities then called for redemption, shall have been
made or provided for, and all funds immediately available to the property
trustee shall first be applied to the payment in full in cash of all
distributions on, or redemption price of, the preferred securities then due and
payable.
In the case of any event of default with respect to the preferred securities
(as described below under "--Events of Default; Notice") resulting from an
event of default with respect to junior subordinated debentures (as described
below under "Description of Junior Subordinated Debentures--Debenture Events of
Default"), the holders of the common securities shall have no right to act with
respect to any such event of default under the trust agreement until the
effects of all such events of default with respect to such preferred securities
have been cured, waived or otherwise eliminated. See "-- Events of Default;
Notice" and "Description of Junior Subordinated Debentures--Debenture Events of
Default." Until all such event of default under the trust agreement with
respect to the preferred securities have been so cured, waived or otherwise
eliminated, the property trustee will act solely on your behalf and not on
behalf of the holders of the common securities, and only you will have the
right to direct the property trustee to act on your behalf.
Liquidation Distribution Upon Dissolution
The amount payable on the preferred securities in the event of any
liquidation of the Trust is $25 per preferred security plus accumulated and
unpaid distributions, subject to certain exceptions which may be in the form of
a distribution of such amount in junior subordinated debentures.
The holders of all the outstanding common securities have the right at any
time to dissolve the Trust and, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, cause the junior subordinated
debentures to be distributed you and the holders of the common securities in
liquidation of the Trust.
The Federal Reserve's risk-based capital guidelines currently provide that
redemptions of permanent equity or other capital instruments before stated
maturity could have a significant impact on a bank holding
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company's overall capital structure and that any organization considering such
a redemption should consult with the Federal Reserve before redeeming any
equity or capital instrument prior to maturity if such redemption could have a
material effect on the level or composition of the organization's capital base
(this consultation may not be necessary if the equity or capital instrument is
redeemed with the proceeds of, or replaced by, a like amount of a similar or
higher quality capital instrument and the Federal Reserve considers the
organization's capital position to be fully adequate after the redemption).
In the event we, while a holder of common securities, dissolve the Trust
prior to the maturity date of the preferred securities and the dissolution of
the Trust is deemed to constitute the redemption of capital instruments by the
Federal Reserve under its risk-based capital guidelines or policies, our
dissolution of the Trust may be subject to the prior approval of the Federal
Reserve. Moreover, any changes in applicable law or changes in the Federal
Reserve's risk-based capital guidelines or policies could impose a requirement
on us to obtain the prior approval of the Federal Reserve to dissolve the
Trust.
Pursuant to the trust agreement, the Trust will automatically dissolve upon
expiration of its term or, if earlier, will dissolve on the first to occur of:
. certain events of bankruptcy, dissolution or liquidation of us or another
holder of the common securities;
. the distribution of a proportionate amount of the junior subordinated
debentures to you and the holders of the common securities, if the
holders of common securities have given written direction to the property
trustee to dissolve the Trust (which direction, subject to the foregoing
restrictions, is optional and wholly within the discretion of the holders
of common securities);
. the redemption of all the preferred securities in connection with the
redemption of all the preferred securities and common securities as
described under "--Redemption;" and
. the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
If dissolution of the Trust occurs as described in any of the first three
circumstances described above, the Trust will be liquidated by the property
trustee as expeditiously as the property trustee determines to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to you and the holders of the common securities a
proportionate amount of the junior subordinated debentures, unless such
distribution is not practical.
If distribution of the junior subordinated debentures is not practical, you
and the holders of preferred securities and common securities will be entitled
to receive out of the assets of the Trust available for distribution to
holders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to, in the case of your
distribution, the aggregate of the liquidation amount plus accumulated and
unpaid distributions thereon to the date of payment. If such 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 its preferred securities shall be paid
on a pro rata basis.
The holders of the common securities will be entitled to receive
distributions upon any such liquidation pro rata with you, except that if an
event of default under the junior subordinated debentures has occurred and is
continuing as a result of our failure to pay any amounts in respect of the
junior subordinated debentures when due, the preferred securities shall have a
priority over the common securities. See "--Subordination of Common
Securities."
After the liquidation date is fixed for any distribution of junior
subordinated debentures:
. the preferred securities will no longer be deemed to be outstanding;
. DTC or its nominee, as the registered holder of preferred securities,
will receive a registered global certificate or certificate representing
the junior subordinated debentures to be delivered upon such distribution
with respect to preferred securities held by DTC or its nominee; and
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. any certificates representing the preferred securities not held by DTC or
its nominee will be deemed to represent the junior subordinated
debentures having a principal amount equal to the stated liquidation
amount of the preferred securities and bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid distributions
on the preferred securities until such certificates are presented to the
security registrar for the preferred securities and common securities for
transfer or reissuance.
If we do not redeem the junior subordinated debentures prior to maturity,
the Trust is not liquidated, and the junior subordinated debentures are not
distributed to you, then the preferred securities will remain outstanding until
the repayment of the junior subordinated debentures and the distribution of the
liquidation distribution to you.
There can be no assurance as to the market prices for the preferred
securities or the junior subordinated debentures that may be distributed in
exchange for preferred securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the preferred securities that you may purchase, or
the junior subordinated debentures that you may receive on dissolution and
liquidation of the Trust, may trade at a discount to the price that you paid to
purchase the preferred securities offered hereby.
Events of Default; Notice
Any one of the following events constitutes an event of default under the
trust agreement with respect to the preferred securities (whatever the reason
for such event of default and whether it is voluntary or involuntary or
effected by operation of law or pursuant to a judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
. the occurrence of a event of default with respect to the junior
subordinated debentures (see "Description of Junior Subordinated
Debentures--Debenture Events of Default");
. default by the Trust in the payment of any distribution when it becomes
due and payable, and continuation of such default for a period of 30
days;
. default by the Trust in the payment of any redemption price of any
preferred security and common security when it becomes due and payable;
. default in the performance, or breach, in any material respect, of any
covenant or warranty of the trustees in the trust agreement (other than a
covenant or warranty a default in the performance of which or the breach
of which is dealt with in clause either of the second or third
circumstances 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 trustees and us by the holders of at least 25% in aggregate
liquidation amount of the outstanding preferred securities, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" under the trust
agreement; or
. the occurrence of certain events of bankruptcy or insolvency with respect
to the property trustee if a successor property trustee has not been
appointed within 90 days thereof.
Within five business days after the occurrence of any event of default
actually known to the property trustee, the property trustee will transmit
notice of the event of default to you and the holders of the common securities
and the preferred securities and the administrators, unless the event of
default has been cured or waived. We, as depositor, and the administrators are
required to file annually with the property trustee a certificate as to whether
or not we are in compliance with all the conditions and covenants applicable to
us under the trust agreement.
If an event of default with respect to the junior subordinated debentures
has occurred and is continuing as a result of any failure by us to pay any
amounts in respect of the junior subordinated debentures when due, the
preferred securities will have a preference over the common securities with
respect to payments of any amounts in respect of the preferred securities as
described above. See "--Subordination of Common Securities," "--Liquidation
Distribution Upon Dissolution" and "Description of Junior Subordinated
Debentures--Debenture Events of Default."
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Removal of Trustees; Appointment of Successors
The holders of at least a majority in aggregate liquidation amount of the
outstanding preferred securities may remove any trustee for cause or, if an
event of default with respect to the junior subordinated debentures has
occurred and is continuing, with or without cause. If a trustee is removed by
the holders of the outstanding preferred securities, the successor may be
appointed by the holders of at least 25% in aggregate liquidation amount of
preferred securities. If a trustee resigns, such trustee will appoint its
successor. If a trustee fails to appoint a successor, the holders of at least
25% in aggregate liquidation amount of the outstanding preferred securities may
appoint a successor. If a successor has not been appointed by you or the
holders, any holder of preferred securities or common securities or the other
trustee may petition a court in the State of Delaware to appoint a successor.
Any Delaware trustee must meet the applicable requirements of Delaware law. Any
property trustee must be a national or state-chartered bank, and at the time of
appointment have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization and have capital and
surplus of at least $50,000,000. No resignation or removal of a trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
trust agreement.
Merger or Consolidation of Trustees
Any entity into which the property trustee or the Delaware trustee may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which such trustee is
a party, or any entity succeeding to all or substantially all the corporate
trust business of such trustee, will be the successor of such trustee under the
trust agreement, provided such entity is otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, convey, transfer or lease its properties and assets substantially
as an entirety to, any entity, except described below or as otherwise set forth
in the trust agreement. The Trust may, at the request of the holders of the
common securities and with the consent of the holders of at least a majority
aggregate liquidation amount of the outstanding preferred securities, merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state, so long as:
. such successor entity (1) expressly assumes all the obligations of the
Trust with respect to the preferred securities or (2) substitutes for the
preferred securities other securities having substantially the same terms
as the preferred securities so long as the substitute preferred
securities have the same priority as the preferred securities with
respect to distributions and payments upon liquidation, redemption and
otherwise;
. a trustee of such successor entity, possessing the same powers and duties
as the property trustee, is appointed to hold the junior subordinated
debentures,
. such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the preferred securities (including any
substitute preferred securities) to be downgraded by any nationally
recognized statistical rating organization, if then rated;
. such merger, consolidation, amalgamation, replacement, conveyance
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the preferred securities (including any
substitute preferred securities) in any material respect;
. such successor entity has a purpose substantially identical to that of
the Trust;
. prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Trust has received an opinion from
independent counsel experienced in such matters to the effect that (1)
such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely
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affect your rights, preference and privileges as a holder of preferred
securities (including any substitute preferred securities) in any material
respect, and (2) following such merger, consolidation, amalgamation,
replacement, conveyance transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company
under the Investment Company Act; and
. we or any permitted successor or assignee own all the common securities
of such successor entity and guarantee the obligations of such successor
entity under the successor securities at least to the extent provided by
the guarantee.
Notwithstanding the foregoing, the Trust may not, except with the consent of
holders of 100% in aggregate liquidation amount of the preferred securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to,
any other entity or permit any other entity to consolidate, amalgamate, merge
with or into or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be taxable as a corporation for United States federal
income tax purposes.
Voting Rights; Amendment of Trust Agreement
Except as provided above and under "--Removal of Trustees; Appointment of
Successors" and "Description of Guarantee--Amendments and Assignment" and as
otherwise required by law and the trust agreement, you will have no voting
rights.
The trust agreement may be amended from time to time by the holders of a
majority of the common securities and the property trustee, without your
consent to:
. cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
the trust agreement, provided that any such amendment does not adversely
affect in any material respect your interests; or
. modify, eliminate or add to any provisions of the trust agreement to such
extent as may be necessary to ensure that the Trust will not be taxable
as a corporation for United States federal income tax purposes at any
time that any preferred or common securities are outstanding or to ensure
that the Trust will not be required to register as an "investment
company" under the Investment Company Act.
Any such amendments of the trust agreement will become effective when notice
of such amendment is given to the holders of preferred securities and common
securities.
The trust agreement may be amended by the holders of a majority of the
common securities and the property trustee with:
. the consent of holders representing not less than a majority in aggregate
liquidation amount of the outstanding preferred securities; and
. receipt by the trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the trustees in
accordance with such amendment will not affect the Trust's not being
taxable as a corporation for United States federal income tax purposes or
the Trust's exemption from status as an "investment company" under the
Investment Company Act.
However, without the consent of each holder of preferred securities or common
securities affected thereby, the trust agreement may not be amended to:
. change the amount or timing of any distribution on the preferred
securities and common securities or otherwise adversely affect the amount
of any distribution required to be made in respect of the preferred
securities and common securities as of a specified date; or
. restrict your right and the right of a holder of common securities to
institute suit for the enforcement of any such payment on or after such
date.
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So long as any junior subordinated debentures are held by the Trust, the
property trustee will not:
. direct the time, method and place of conducting any proceeding for any
remedy available to the debenture trustee, or execute any trust or power
conferred on the property trustee with respect to the junior subordinated
debentures;
. waive any past default that is waivable under Section 5.13 of the
indenture;
. exercise any right to rescind or annul a declaration that the principal
of all the junior subordinated debentures shall be due and payable; or
. consent to any amendment, modification or termination of the indenture or
the junior subordinated debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the holders of at
least a majority in aggregate liquidation amount of the outstanding
preferred securities, or, if a consent under the indenture would require
the consent of each holder of junior subordinated debentures affected
thereby, no such consent will be given by the property trustee without
the prior consent of each holder of the preferred securities.
The property trustee may not revoke any action previously authorized or
approved by a vote of the holders of the preferred securities except by
subsequent vote of the holders of the preferred securities. The property
trustee will notify you of any notice of default with respect to the junior
subordinated debentures. In addition to obtaining your approval as described
above, before taking any of the actions listed above, the property trustee will
obtain an opinion of counsel experienced in such matters to the effect that the
Trust will not be taxable as a corporation for United States federal income tax
purposes on account of such action.
Any required approval of holders of preferred securities may be given at a
meeting of holders of preferred securities convened for such purpose or
pursuant to written consent. The property trustee will cause a notice of any
meeting at which you are entitled to vote, or of any matter upon which action
by your written consent is to be taken, to be given to you in the manner set
forth in the trust agreement.
Your vote or consent will not be required to redeem and cancel preferred
securities in accordance with the trust agreement.
Notwithstanding that you are entitled to vote or consent under any of the
circumstances described above, any of the preferred securities that are owned
by us, the trustees or any of our affiliates or any trustees, will, for
purposes of such vote or consent, be treated as if they were not outstanding.
Expenses and Taxes
In the indenture, we have agreed to pay all debts and other obligations
(other than distributions on the preferred securities) and all costs and
expenses of the Trust (including costs and expenses relating to the
organization of the Trust, the fees and expenses of the trustees and the costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes and all costs and expenses with respect thereto (other than United States
withholding taxes) to which the Trust might become subject. These obligations
of ours under the indenture are for the benefit of, and shall be enforceable
by, any creditor of the Trust to whom any of these debts, obligations, costs,
expenses and taxes are owed whether or not such creditor has received notice
thereof. Any such creditor may enforce these obligations directly against us,
and we have irrevocably waived any right or remedy to require that any creditor
take any action against the Trust or any other person before proceeding against
us. We have also agreed in the indenture to execute such additional agreements
as may be necessary or desirable to give full effect to the foregoing.
Book Entry, Delivery and Form
The preferred securities will be issued in the form of one or more fully
registered global securities, which will be deposited with, or on behalf of,
DTC and registered in the name of a DTC nominee. Unless and until it
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is exchangeable in whole or in part for the preferred securities in definitive
form, a global security may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or to another nominee of DTC or by
DTC or any such nominee to a successor of DTC or to a nominee of such
successor.
Ownership of beneficial interests in a global security will be limited to
participants that have accounts with DTC or its nominee or persons that may
hold interests through such participants. We expect that, upon the issuance of
a global security, DTC will credit, on its book-entry registration and transfer
system, the participants' accounts with their respective principal amounts of
preferred securities represented by such global security. Ownership of
beneficial interests in such global security will be shown on, and the transfer
of such ownership interests will be effected only through, records maintained
by DTC (with respect to your interests of participants) and on the records of
participants (with respect to your interests). You will not receive written
confirmation from DTC of your purchase, but are expected to receive written
confirmations from participants through which you entered into the transaction.
Transfers of ownership interests will be accomplished by entries on the books
of participants acting on your behalf.
So long as DTC, or its nominee, is the registered owner of a global
security, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the preferred securities represented by such global security
for all purposes under the trust agreement. Except as provided below, you are
the owner of beneficial interests in a global security and will not be entitled
to receive physical delivery of the preferred securities in definitive form.
You will not be considered an owner or holder under the trust agreement.
Accordingly, you must rely on the procedures of DTC and, if you are not a
participant, on the procedures of the participant through which you own your
interest, to exercise any rights as a holder of preferred securities under the
trust agreement. We understand that, under DTC's existing practices, in the
event that we request any action you, or if you desire to take any action which
a holder is entitled to take under the trust agreement, DTC would authorize the
participants holding your interests to take such action, and such participants
would authorize you to take such action or would otherwise act upon your
instructions. Redemption notices will also be sent to DTC. If less than all of
the preferred securities are being redeemed, we understand that it is DTC's
existing practice to determine by lot the amount of the interest of each
participant to be redeemed.
Distributions on the preferred securities registered in the name of DTC or
its nominee will be made to DTC or its nominee, as the case may be, as the
registered owner of the global security representing such preferred securities.
Neither the trustees, nor the administrators, any paying agent or any other
agent of ours or the trustees will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the global security for such preferred securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Disbursements of distributions to participants shall be
the responsibility of DTC. DTC's practice is to credit participants' accounts
on a payable date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive payment on
the payable date. Payments by participants to you will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participant and not of DTC, us, the
trustees, the paying agent or any other agent of ours, subject to any statutory
or regulatory requirements as may be in effect from time to time.
DTC may discontinue providing its services as securities depository with
respect to the preferred securities at any time by giving reasonable notice to
us or the trustees. If DTC notifies us that it is unwilling to continue as
such, or if it is unable to continue or ceases to be a clearing agency
registered under the Exchange Act and a successor depository is not appointed
by us within ninety days after receiving such notice or becoming aware that DTC
is no longer so registered, we will issue the preferred securities in
definitive form upon registration of transfer of, or in exchange for, such
global security. In addition, we may at any time and in our sole discretion
determine not to have the preferred securities represented by one or more
global securities and, in such event, will issue preferred securities in
definitive form in exchange for all of the global securities representing such
preferred securities.
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DTC has advised the Trust and us as follows:
. DTC is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve, a "clearing
corporation" within the meaning of the Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of
the Exchange Act;
. DTC was created to hold securities for its participants and to facilitate
the clearance and settlement of securities transactions between
participants through electronic book entry changes to accounts of its
participants, thereby eliminating the need for physical movement of
certificates;
. participants include securities brokers and dealers (such as the
underwriters), banks, trust companies and clearing corporations and may
include certain other organizations;
. certain of such participants (or their representatives), together with
other entities, own DTC; and
. indirect access to the DTC system is available to others such as banks,
brokers, dealers and trust companies that clear through, or maintain a
custodial relationship with, a participant, either directly or
indirectly.
Same-Day Settlement and Payment
Settlement for the preferred securities will be made by the underwriters in
immediately available funds.
Secondary trading in preferred securities of corporate issuers is generally
settled in clearinghouse or next-day funds. In contrast, the preferred
securities will trade in DTC's Same-Day Funds Settlement System, and secondary
market trading activity in the preferred securities will therefore be required
by DTC to settle in immediately available funds. No assurance can be given as
to the effect, if any, of settlement in immediately available funds on trading
activity in the preferred securities.
Payment and Paying Agency
Payments in respect of the preferred securities will be made to DTC, which
will credit the relevant accounts at DTC on the applicable distribution dates
or, if the preferred securities are not held by DTC, such payments will be
made by check mailed to the address of the holder entitled thereto such
address appears on the securities register for the preferred securities and
common securities. The paying agent will initially be the property trustee and
any co-paying agent chosen by the property trustee and acceptable to the
administrators. The paying agent will be permitted to resign as paying agent
upon 30 days' written notice to the property trustee and the administrators.
If the property trustee is no longer the paying agent, the property trustee
appoint a successor (which must be a bank or trust company reasonably
acceptable to the administrators) to act as paying agent.
Registrar and Transfer Agent
The property trustee will act as registrar and transfer agent for the
preferred securities.
Registration of transfers of preferred securities will be effected without
charge by or on behalf of the Trust, but only upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Trust will not be required to register or cause to be registered
the transfer of the preferred securities after the preferred securities have
been called for redemption.
Obligations and Duties of the Property Trustee
The property trustee, other than during the occurrence and continuance of
an event of default undertakes to perform only such duties as are specifically
set forth in the trust agreement and, after such event of default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the property trustee is under no obligation to exercise any of the
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powers vested in it by the trust agreement at your request unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
For information concerning the relationships between Bankers Trust Company,
the property trustee, and us, see "Description of Junior Subordinated
Debentures--Information Concerning the Debenture Trustee."
Miscellaneous
The administrators and the property trustee are authorized and directed to
conduct the affairs of and to operate the Trust in such a way that (1) the
Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act or taxable as a corporation for
United States federal income tax purposes and (2) the junior subordinated
debentures will be treated as our indebtedness for United States federal income
tax purposes. In this connection, the property trustee and the holders of
common securities are authorized to take any action not inconsistent with
applicable law, the certificate of trust of the Trust or the trust agreement
that the property trustee and the holders of common securities determine in
their discretion to be necessary or desirable for such purposes, as long as
such action does not materially adversely affect your interests.
You will not have preemptive or similar rights.
The Trust may not borrow money, issue debt or mortgage or pledge any of its
assets.
Governing Law
The trust agreement will be governed by and construed in accordance with the
laws of the State of Delaware.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The junior subordinated debentures are to be issued under the indenture
between Bankers Trust Company, the debenture trustee, and us. This summary of
certain terms and provisions of the junior subordinated debentures and the
indenture is not complete. You should read the form of the indenture that is
filed as an exhibit to the registration statement of which this prospectus is a
part. Whenever particular defined terms of the indenture (as amended or
supplemented from time to time) are referred to in this prospectus, such
defined terms are incorporated herein by reference. A copy of the form of
indenture is available from the debenture trustee upon request.
General
Concurrently with the issuance of the preferred securities, the Trust will
invest the proceeds, together with the consideration paid by us for the common
securities, in the junior subordinated debentures issued by us. The junior
subordinated debentures will bear interest, accruing from , at
the annual rate of % of the principal amount thereof, payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of each year,
commencing , to the person in whose name each junior
subordinated debenture is registered at the close of business on the 15th day
of March, June, September or December (whether or not a business day) next
preceding such interest payment date. It is anticipated that, until the
liquidation, (if any), of the Trust, each junior subordinated debentures will
be registered in the name of the Trust and held by the property trustee in
trust for you and the holders of the common securities.
The amount of interest payable for any period less than a full interest
period will be computed on the basis of a 360-day year of twelve 30-day months
and the actual days elapsed in a partial month in such period. The amount of
interest payable for any full interest period will be computed by dividing the
annual rate by four. If
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any date on which interest is payable to the junior subordinated debentures is
not a business day, then payment of the interest payable on such date will be
made on the next business day (without any interest or other payment in respect
of any such delay), or, if such business day falls in the next calendar year,
such payment will be made on the immediately preceding business day in each
case with the same force and effect as if made on the date such payment was
originally payable.
Accrued interest that is not paid on the applicable interest payment date
will bear additional interest on the amount thereof (to the extent permitted by
law) at the annual rate of %, compounded quarterly and computed on the
basis of a 360-day year of twelve 30-day months and the actual days elapsed in
a partial month in such period. The amount of additional interest payable for
any full interest period will be computed by dividing the annual rate by four.
The term "interest" as used herein includes quarterly interest payments,
interest on quarterly interest payments not paid on the applicable interest
payment date and, if applicable, any additional sums we pay on the junior
subordinated debentures following a Tax Event (as defined under "Description of
Preferred Securities--Redemption") that may be required so that distributions
payable by the Trust will not be reduced by any additional taxes, duties or
other governmental changes resulting from such Tax Event.
The junior subordinated debentures will mature on , 2029,
subject to our right to shorten the maturity date once at any time to any date
not earlier than , 2004, if we have received prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. In the event we elect to shorten the maturity
of the junior subordinated debentures, we will give notice to the registered
holders of the junior subordinated debentures, the debenture trustee and the
Trust of such shortening no less than 90 days prior to the effectiveness
thereof. The property trustee must give you and the holders of the common
securities notice of the shortening of the stated maturity at least 30 but not
more than 60 days before such date.
The junior subordinated debentures will be unsecured and will rank junior
and be subordinate in right of payment to all of our senior indebtedness and
equally with our obligations associated with the outstanding preferred
securities of GBCI Capital Trust. The junior subordinated debentures will not
be subject to a sinking fund. The indenture does not limit our ability to incur
or issue other secured or unsecured debt, including senior indebtedness,
whether under the junior subordinated debentures or any existing or other
indenture that we may enter into in the future or otherwise. See "--
Subordination."
Option to Extend Interest Payment Period
So long as no event of default under the junior subordinated debentures has
occurred and is continuing, we have the right at any time during the term of
the junior subordinated debentures to defer the payment of interest at any time
or from time to time for a period not exceeding 20 consecutive quarterly
periods with respect to each extension period, provided that no extension
period may extend beyond the stated maturity of the junior subordinated
debentures. During any extension period we have the right to make partial
payments of interest on any interest payment date. At the end of an extension
period, we must pay all interest then accrued and unpaid (together with
interest thereon at the annual rate of %, compounded quarterly and
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period, to the extent permitted by
applicable law). The amount of additional interest payable for any full
interest period will be computed by dividing the annual rate by four. During an
extension period, interest will continue to accrue and holders of junior
subordinated debentures (or holders of preferred securities while outstanding)
will be required to accrue interest income for United States federal income tax
purposes. See "Certain Federal Income Tax Consequences--Interest Income and
Original Issue Discount."
During any extension period, we may not:
. make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities that rank equally
in all respects with or junior in interest to the junior subordinated
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debentures, including our obligations associated with the outstanding
preferred securities of GBCI Capital Trust, or
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our capital
stock, except that we may:
(a) repurchase, redeem or make other acquisitions of shares of our
capital stock in connection with any employment contract benefit
plan or other similar arrangement with or for the benefit of any
one or more employees, officers directors or consultants, in
connection with a dividend reinvestment or stockholder stock
purchase plan or in connection with the issuance of our capital
stock (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) take any necessary action in connection with any reclassification,
exchange or conversion of any class or series of our capital stock
(or any capital stock of a subsidiary of ours) for any class or
series of our capital stock or of any class or series of our
indebtedness for any class or series of our capital stock;
(c) purchase fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged;
(d) declare a dividend in connection with any stockholders' rights
plan, or issue rights, stock or other property under any
stockholders' rights plan, or redeem or repurchase rights pursuant
thereto; or
(e) declare a 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 equally with or junior
to such stock.
Prior to the termination of any extension period, we may further defer the
payment of interest, provided that no extension period may exceed 20
consecutive quarterly periods or extend beyond the stated maturity of the
junior subordinated debentures. Upon the termination of any extension period
and the payment of all amounts then due, we may elect to begin a new extension
period subject to the above conditions. No interest shall be due and payable
during an extension period, except at its end. We must give the trustees notice
of our election of such extension period at least one business day prior to the
earlier of (1) the date the distribution on the preferred securities would have
been payable but for the election to begin an extension period and (2) the date
the property trustee is required to give you notice of the record date or the
date such distribution is payable, but in any event not less than one business
day prior to such record date. The property trustee will give you notice of our
election to begin a new extension period. There is no limitation on the number
of times that we may elect to begin an extension period.
Redemption
We may redeem the junior subordinated debentures prior to maturity at our
option (1) on or after , 2004, in whole at any time or in part
from time to time, or (2) in whole, but not in part, at any time within 90 days
following the occurrence and during the continuation of a Tax Event, Investment
Company Event or Capital Treatment Event (each as defined under "Description of
Preferred Securities--Redemption"), in each case at a redemption price equal to
the outstanding principal amount of the junior subordinated debentures plus
accrued interest (including any additional interest on any additional sums we
pay following a Tax Event as described below under "--Additional Sums"). The
proceeds of any such redemption will be used by the Trust to redeem the
preferred securities.
The Federal Reserve's risk-based capital guidelines, which are subject to
change, currently provide that redemptions of permanent equity or other capital
instruments before stated maturity could have a significant impact on a bank
holding company's overall capital structure and that any organization
considering such a
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redemption should consult with the Federal Reserve before redeeming any equity
or capital instrument prior to maturity if such redemption could have a
material effect on the level or composition of the organization's capital base.
Consultation may not be necessary if the equity or capital instrument was
redeemed with the proceeds of, or replaced by, a like amount of a similar or
higher quality capital instrument and the Federal Reserve considers the
organization's capital position to be fully adequate after the redemption.
If we redeem the junior subordinated debentures prior to their stated
maturity that would constitute the redemption of capital instruments under the
Federal Reserve's current risk-based capital guidelines and may be subject to
the prior approval of the Federal Reserve. The redemption of the junior
subordinated debentures also could be subject to the additional prior approval
of the Federal Reserve under its current risk-based capital guidelines.
Additional Sums
We have covenanted in the indenture that, if and for so long as the Trust is
the holder of all junior subordinated debentures and the Trust is required to
pay any additional taxes, duties or other governmental charges as a result of a
Tax Event, we will pay as additional sums on the junior subordinated debentures
such amounts as may be required so that the distributions payable by the Trust
will not be reduced as a result of any such additional taxes, duties or other
governmental charges. See "Description of Preferred Securities--Redemption."
Registration, Denomination and Transfer
The junior subordinated debentures will initially be registered in the name
of the Trust. If the junior subordinated debentures are distributed to you, it
is anticipated that the depositary arrangements for the junior subordinated
debentures will be substantially identical to those in effect for the preferred
securities. See "Description of Preferred Securities--Book Entry, Delivery and
Form."
Although DTC has agreed to the procedures described above, it is under no
obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. If DTC is at any time unwilling or
unable to continue as depositary and we do not appoint a successor depositary
within 90 days of receipt of notice from DTC to such effect, we will cause the
junior subordinated debentures to be issued in definitive form.
Payments on junior subordinated debentures represented by a global security
will be made to Cede & Co., the nominee for DTC, as the registered holder of
the junior subordinated debentures, described under "Description of Preferred
Securities--Book Entry, Delivery and Form." If junior subordinated debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the junior subordinated debentures will be registerable, and junior
subordinated debentures will be exchangeable for junior subordinated debentures
of other authorized denominations of a like aggregate principal amount, at the
corporate trust office of the debenture trustee in New York, New York, or at
the offices of any paying agent or transfer agent we appoint, provided that
payment of interest may be made at our option by check mailed to the address of
the persons entitled thereto. However, a holder of $1 million or more in
aggregate principal amount of junior subordinated debentures may receive
payments of interest (other than interest payable at the stated maturity) by
wire transfer of immediately available funds upon written request to the
debenture trustee not later than 15 calendar days prior to the date on which
the interest is payable.
Junior subordinated debentures are issuable only in registered form without
coupons in integral multiples of $ . Junior subordinated debentures
will be exchangeable for other junior subordinated debentures of like tenor, of
any authorized denominations, and of a like aggregate principal amount.
Junior subordinated debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of
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transfer, duly executed), at the office of the securities registrar appointed
under the indenture or at the office of any transfer agent we designate for
such purpose without service charge and upon payment of any taxes and other
governmental charges as described in the indenture. We will appoint the
debenture trustee as securities registrar under the indenture. We may at any
time designate additional transfer agents with respect to the junior
subordinated debentures.
In the event of any redemption, we will not, nor will the debenture trustee
be required to:
. issue, register the transfer of or exchange junior subordinated
debentures during a period beginning at the opening of business 15 days
before the day of selection for redemption of the junior subordinated
debentures to be redeemed and ending at the close of business on the day
of mailing of the relevant notice of redemption; or
. transfer or exchange any junior subordinated debentures so selected for
redemption, except, in the case of any junior subordinated debentures
being redeemed in part, any portion of the debenture not to be redeemed.
Any monies deposited with the debenture trustee or any paying agent, or then
held by us in trust, for the payment of the principal of (and premium, if any)
or interest on any junior subordinated debenture and remaining unclaimed for
two years after this principal (and premium, if any) or interest has become due
and payable shall, at our request, be repaid to us and the holder of such
junior subordinated debenture shall thereafter look, as a general unsecured
creditor, only to us for payment thereof.
Restrictions on Certain Payments; Certain Covenants of the Company
We have covenanted that at any time (1) there has occurred any event (a) of
which we have actual knowledge that with the giving of notice or the lapse of
time, or both, would constitute an event of default under the junior
subordinated debentures and (b) that we have not taken reasonable steps to
cure, (2) if the junior subordinated debentures are held by the Trust, we are
in default with respect to our payment of any obligations under the guarantee,
or (3) we have given notice of our election of an extension period as provided
in the indenture and have not rescinded such notice, or such extension period,
or any extension thereof, is continuing, then we will not:
. make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities that rank equally
in all respects with, or junior in interest to, the junior subordinated
debentures, including our obligations associated with the outstanding
preferred securities of GBCI Capital Trust; or
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock, except that we may:
(a) repurchase, redeem or make other acquisitions of shares of our
capital stock in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock
purchase plan or in connection with the issuance of our capital
stock (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction
entered into prior to the applicable extension period or other
event referred to below;
(b) take any necessary action in connection with any reclassification,
exchange or conversion of any class or series of our capital stock
(or any capital stock of any subsidiary of ours) for any class or
series of our capital stock or of any class or series of our
indebtedness for any class or series of our capital stock;
(c) purchase fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged;
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(d) declare a dividend in connection with any stockholders' rights
plan, or issue rights, stock or other property under any
stockholders' rights plan, or redeem or repurchase rights pursuant
thereto; or
(e) declare a 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 equally with or junior
to such stock.
We have covenanted in the indenture:
. to continue to hold, directly or indirectly, 100% of the common
securities, provided that certain successors that are permitted pursuant
to the indenture may succeed to our ownership of the common securities;
. as holder of the common securities, not to voluntarily terminate, windup
or liquidate the Trust, other than:
(a) in connection with a distribution of junior subordinated debentures
to the holders of the preferred securities in liquidation of the
Trust; or
(b) in connection with certain mergers, consolidations or amalgamations
permitted by the trust agreement; and
. to use reasonable efforts, consistent with the terms and provisions of
the trust agreement, to cause the Trust to continue not to be taxable as
a corporation for United States federal income tax purposes.
Modification of Indenture
From time to time, we as well as the debenture trustee may, without the
consent of any of the holders of the outstanding junior subordinated
debentures, amend, waive or supplement the provisions of the indenture to:
. evidence our succession to another corporation or association and the
assumption by such person of our obligations under the junior
subordinated debentures;
. add further covenants, restrictions or conditions for the protection of
holders of the junior subordinated debentures;
. cure ambiguities or correct the junior subordinated debentures in the
case of defects or inconsistencies in the provisions thereof, so long as
any such cure or correction does not adversely affect the interest of the
holders of the junior subordinated debentures in any material respect;
. change the terms of the junior subordinated debentures to facilitate the
issuance of the junior subordinated debentures in certificated or other
definitive form;
. evidence or provide for the appointment of a successor debenture trustee;
or
. qualify, or maintain the qualification of, the indenture under the Trust
Indenture Act.
The indenture contains provisions permitting the debenture trustee and us,
with the consent of the holders of not less than a majority in principal amount
of the junior subordinated debentures, to modify the indenture in a manner
affecting the rights of the holders of the junior subordinated debentures.
However, none of these modifications may be made, without the consent of the
holder of each outstanding junior subordinated debenture so affected that
would:
. change the stated maturity of, or any installment of interest on, the
junior subordinated debentures, or reduce the principal amount thereof,
the rate of interest thereon or any premium payable upon the redemption
thereof, or change the place of payment where, or the currency in which,
any such amount is payable, or impair the right to institute suit for the
enforcement of any payment on junior subordinated debentures; or
. reduce the percentage of principal amount of junior subordinated
debentures, the holders of which are required to consent to any
modification of, or waiver of rights under, the indenture.
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Furthermore, so long as any of the preferred securities remain outstanding,
no modification may be made that adversely affects you in any material respect,
and no termination of the indenture may occur, and no waiver of any event of
default or compliance with any covenant under the indenture may be effective,
without the prior consent of the holders of at least a majority of the
aggregate liquidation amount of the outstanding preferred securities unless and
until the principal of (and premium, if any, on) the junior subordinated
debentures and all accrued and unpaid interest thereon have been paid in full
and certain other conditions are satisfied.
Debenture Events of Default
The indenture provides that any one or more of the following described
events with respect to the junior subordinated debentures that has occurred and
is continuing constitute an "event of default" with respect to the junior
subordinated debentures:
. failure to pay any interest on the junior subordinated debentures when
due and continuance of this default for a period of 30 days (subject to
the deferral of any due date in the case of an extension period); or
. failure to pay any principal of or premium, if any, on the junior
subordinated debentures when due whether at the stated maturity; or
. failure to observe or perform certain other covenants contained in the
indenture for 90 days after written notice of such failure to us from the
debenture trustee or the holders of at least 25% in aggregate outstanding
principal amount of the outstanding junior subordinated debentures; or
. the occurrence of the appointment of a receiver or other similar official
in any liquidation, insolvency or similar proceeding with respect to us
or all or substantially all of our property; or a court or other
governmental agency shall enter a decree or order appointing a receiver
or similar official and such decree or order shall remain unstayed and
undischarged for a period of 60 days.
As described in "Description of Preferred Securities--Events of Default;
Notice," the occurrence of an event of default in respect of the junior
subordinated debentures will also constitute an event of default in respect of
the preferred securities and common securities.
The holders of at least a majority in aggregate principal amount of
outstanding junior subordinated debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
debenture trustee. The debenture trustee or the holders of not less than 25% in
aggregate principal amount of outstanding junior subordinated debentures may
declare the principal due and payable immediately upon an event of default,
and, should the debenture trustee or such holders of junior subordinated
debentures fail to make such declaration, the holders of at least 25% in
aggregate liquidation amount of the outstanding preferred securities shall have
such right. The holders of a majority in aggregate principal amount of
outstanding junior subordinated debentures may annul such declaration and waive
the default if all defaults (other than the non-payment of the principal of
junior subordinated debentures which has become due solely by such
acceleration) have 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. Should the holders of junior
subordinated debentures fail to annul such declaration and waive such default,
the holders of a majority in aggregate liquidation amount of the outstanding
preferred securities shall have such right.
The holders of at least a majority in aggregate principal amount of the
outstanding junior subordinated debentures affected thereby may, on behalf of
the holders of all the junior subordinated debentures, waive any past default,
except a default in the payment of principal (or premium, if any) or interest
(unless this default has been cured and a sum sufficient to pay all matured
installments of interest and principal (and premium on, if any) due otherwise
than by acceleration has been deposited with the debenture trustee) or a
default in respect of a covenant or provision which under the indenture cannot
be modified or amended without the consent of the holder of each outstanding
junior subordinated debenture affected by the default. See "--Modification of
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Junior Subordinated Indenture." We are required to certify annually to the
debenture trustee as to whether or not we are in compliance with all the
conditions and covenants applicable to us under the indenture.
If an event of default occurs and is continuing, the property trustee will
have the right to declare the principal of and the interest on the junior
subordinated debentures, and any other amounts payable under the indenture, to
be due and payable and to enforce its other rights as a creditor with respect
to the junior subordinated debentures.
Enforcement of Certain Rights by Holders of Preferred Securities
If an event of default has occurred and is continuing and such event is
attributable to our failure to pay any amounts payable in respect of the junior
subordinated debentures on the date such amounts are otherwise payable, you may
institute a legal action against us for enforcement of payment to you of an
amount equal to the amount payable in respect of junior subordinated debentures
having a principal amount equal to the aggregate liquidation amount of the
preferred securities you hold. We may not amend the indenture to remove the
foregoing right to bring such legal action without your prior written consent.
We will have the right under the indenture to set-off any payment we make to
you in connection with such a legal action.
You are not able to exercise directly any remedies available to the holders
of the junior subordinated debentures except under the circumstances described
in the preceding paragraph. See "Description of Preferred Securities--Events of
Default; Notice."
Consolidation, Merger, Sale of Assets and Other Transactions
The indenture provides that we may not consolidate with or merge into any
other entity or convey, transfer or lease our properties and assets
substantially as an entirety to any entity, and no entity may consolidate with
or merge into us or convey, transfer or lease its properties and assets
substantially as an entirety to us, unless:
. in the event we consolidate with or merge into another entity or convey
or transfer our properties and assets substantially as an entirety to any
entity, the successor entity is organized under the laws of the United
States or any state or the District of Columbia, and such successor
entity expressly assumes our obligations in respect of the junior
subordinated debentures; provided, however, that nothing in the Junior
Subordinated Indenture shall be deemed to restrict or prohibit, and no
supplemental indenture shall be required in the case of the merger of a
bank (as defined below) with and into a bank or us, the consolidation of
banks into a bank or us, or the sale or other disposition of all or
substantially all of the assets of any bank to another bank or us, if, in
any such case in which we are not the surviving, resulting or acquiring
entity, we would own, directly or indirectly, at least 80% of the voting
securities of the bank (and of any other bank any voting securities of
which are owned, directly or indirectly, by such bank) surviving such
merger, resulting from such consolidation or acquiring such assets;
. immediately after giving effect thereto, no event of default with respect
to the junior subordinated debentures, and no event which, after notice
or lapse of time or both, would constitute an event of default with
respect to the junior subordinated debentures, has occurred and is
continuing; and
. certain other conditions as prescribed in the indenture are satisfied.
For purposes of the first bullet point above, the term "bank" means each of:
. any banking subsidiary of ours the consolidated assets of which
constitute 20% or more of our consolidated assets and our consolidated
subsidiaries;
. any other banking subsidiary designated as a bank pursuant to a board
resolution and set forth in an officers' certificate delivered to the
trustee; and
. any subsidiary of ours that owns, directly or indirectly, any voting
securities, or options, warrants or rights to subscribe for or purchase
voting securities, of any bank under the first and second bullet points
above and in the case of all three bullet points their respective
successors (whether by consolidation,
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merger, conversion transfer of substantially all their assets and business
or otherwise) so long as any such successor is banking subsidiary (in the
case of the first and second bullet point or a subsidiary (in the case of
the third bullet point) of ours.
The provisions of the indenture do not afford holders of the junior
subordinated debentures protection in the event we are involved in a highly
leveraged or other transaction that may adversely affect holders of the junior
subordinated debentures.
Satisfaction and Discharge
The indenture will cease to be of further effect and we will deemed to have
satisfied and discharged the indenture when:
. all junior subordinated debentures not previously delivered to the
debenture trustee for cancellation (1) have become due and payable, or
(2) will become due and payable at the stated maturity within one year;
. we deposit or cause to be deposited with the debenture trustee funds, in
trust, for the purpose and in an amount sufficient to pay and discharge
the entire indebtedness on the junior subordinated debentures not
previously delivered to the debenture trustee for cancellation, for the
principal (and premium, if any) and interest to the date of the deposit
or to the stated maturity or redemption date; and
. we have paid all other sums payable by us under the indenture and we have
delivered applicable certificates and opinions that indicate we have
complied with all of our obligations.
Subordination
The junior subordinated debentures will be subordinate and junior in right
of payment, to the extent set forth in the indenture, to all of our senior
indebtedness (as defined below) of and equally with our obligations associated
with the outstanding preferred securities of GBCI Capital Trust. If we default
in the payment of any principal, premium, if any, or interest, if any, or any
other amount payable on any senior indebtedness when the same becomes due and
payable whether at maturity or at a date fixed for redemption or by declaration
of acceleration or otherwise, then unless and until such default has been cured
or waived or has ceased to exist or all senior indebtedness has been paid, no
direct or indirect payment (in cash, property, securities, by set-off or
otherwise) may be made or agreed to be made on the junior subordinated
debentures, or in respect of any redemption repayment, retirement, purchase or
other acquisition of any of the junior subordinated debentures.
As used herein, "senior indebtedness" means, whether recourse is to all or a
portion of our assets and whether or not contingent:
. every obligation of ours for money borrowed;
. every obligation of ours evidenced by bonds, debentures, notes or other
similar instrument, including obligations incurred in connection with the
acquisition of property, assets or businesses;
. every reimbursement obligation of ours with respect to letters of credit,
bankers' acceptance or similar facilities issued for our account;
. every obligation of ours issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business);
. every capital lease obligation of ours;
. every obligation of ours for claims (as defined in Section 101(4) of the
United States Bankruptcy Code of 1978, as amended) in respect of
derivative products such as interest foreign exchange rate contracts,
commodity contracts and similar arrangements; and
. every obligation of the type referred to above of another person and all
dividends of another person the payment of which, in either case, we have
guaranteed or are responsible or liable, directly or indirectly, as
obligor or otherwise.
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However, senior indebtedness shall not include any of the following:
. any obligations which, by their terms, are expressly stated to rank
equally in right of payment with, to not be superior in right of payment
to, the junior subordinated debentures;
. any of our senior indebtedness which when incurred and without respect to
any election under Section 1111(b) of the United States Bankruptcy Code
of 1978, as amended, was without recourse to us;
. any indebtedness of ours to any of our subsidiaries;
. indebtedness to executive officers or directors, or
. any indebtedness in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with us
that is a financing entity of ours in connection with the issuance by
such financing entity of securities that are similar to the preferred
securities, including the outstanding preferred securities of GBCI
Capital Trust.
As of , 1999, the senior indebtedness was approximately
$ . All senior indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall first be paid in full
before any payment or distribution whether in cash, securities or other
property, shall be made on account of the junior subordinated debentures in the
event of:
. certain events of bankruptcy, dissolution or liquidation of us or another
holder of the common securities;
. any proceeding for our liquidation, dissolution or other winding up,
voluntary or involuntary, whether or not involving insolvency or bankrupt
proceedings;
. any assignment by us for the benefit of creditors; or
. any other marshaling of our assets.
In such event, any payment or distribution on account of the junior
subordinated debentures, whether in cash, securities or other property, that
would otherwise (but for the subordination provisions) be payable or
deliverable in respect of the junior subordinated debentures will be paid
described above, directly to the holders of senior indebtedness in accordance
with the priorities then existing among such holders until all senior
indebtedness (including any interest thereon accruing after the commencement of
any such proceedings) has been paid in full.
In the event of any proceeding described above, after payment in full of all
sums owing with respect to our senior indebtedness, the holders of junior
subordinated debentures, together with the holders of our obligations ranking
on a parity with the junior subordinated debentures, will be entitled to be
paid from our remaining assets the amounts at the time due and owing on the
junior subordinated debentures and such other obligations. This payment will be
made before any payment or other distribution, whether in cash, property or
otherwise, will be made on account of any capital stock or obligations ranking
junior to the junior subordinated debentures and such other obligations. If
payment or distribution on account of the junior subordinated debentures of any
character or security, whether in cash, securities or other property, is
received by any holder of any junior subordinated debentures in contravention
of any of the terms hereof and before all our senior indebtedness has been paid
in full, such payment or distribution or security will be received in trust for
the benefit of, and must be paid over or delivered and transferred to, the
holders of our senior indebtedness at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all senior indebtedness remaining unpaid to the extent necessary to pay all
such senior indebtedness in full.
By reason of such subordination, in the event of our insolvency, holders of
senior indebtedness may receive more, ratably, and holders of the junior
subordinated debentures may receive less, ratably, than our other creditors.
Such subordination will not prevent the occurrence of any event of default in
respect of the junior subordinated debentures.
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The indenture places no limitation on the amount of additional senior
indebtedness that we may incur. We expect from time to time to incur additional
senior indebtedness.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of a
default in the performance of our obligations under the junior subordinated
debentures, is under no obligation to exercise any of the powers vested in it
by the indenture at the request of any holder of junior subordinated
debentures, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities that might be incurred by the exercise of these
powers. The debenture trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its
duties if the debenture trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it.
Bankers Trust Company, the debenture trustee, may serve from time to time as
trustee under other indentures or trust agreements with us or our subsidiaries
relating to other issues of our securities. In addition, we as well as certain
of our affiliates may have other banking relationships with Bankers Trust
Company and its affiliates.
Governing Law
The indenture and the junior subordinated debentures will be governed by and
construed in accordance with the laws of the State of New York.
DESCRIPTION OF GUARANTEE
We will execute and deliver the guarantee concurrently with the issuance of
preferred securities by the Trust for your benefit. Bankers Trust Company will
act as guarantee trustee under the guarantee. The guarantee trustee will hold
the guarantee for your benefit. This summary of certain provisions of the
guarantee is not complete. You should read the form of the guarantee, which is
filed as an exhibit to the registration statement of which this prospectus is a
part. A copy of the form of guarantee is available upon request from the
guarantee trustee.
General
We will irrevocably agree to pay in full on a subordinated basis, to the
extent set forth in the guarantee and described herein, the guarantee payments
described below to you, as and when due, regardless of any defense, right of
set-off or counterclaim that the Trust may have or assert other than the
defense of payment. The following payments with respect to the preferred
securities, to the extent not paid by or on behalf of the Trust, will be
subject to the guarantee:
. any accrued and unpaid distributions required to be paid on such
preferred securities, to the extent that the Trust has funds on hand
available therefor at such time;
. the redemption price with respect to any preferred securities called for
redemption, to the extent that the Trust has funds on hand available for
its payment at such time; and
. upon a voluntary or involuntary dissolution, termination, winding up or
liquidation of the Trust (unless the junior subordinated debentures are
distributed to you), the lessor of:
(a) the aggregate of the liquidation amount and all accumulated and
unpaid distributions to the date of payment, to the extent that the
Trust has funds on hand available for their payment; and
(b) the amount of assets of the Trust remaining available for
distribution to you on liquidation of the Trust.
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Our obligation to make a guarantee payment may be satisfied by our direct
payment to you or by causing the Trust to pay these amounts to you.
The guarantee will be an irrevocable guarantee of payment on a subordinated
basis of the Trust's obligations under the preferred securities, but will apply
only to the extent that the Trust has funds sufficient to make such payments,
and is not a guarantee of collection.
If we do not make payments on the junior subordinated debentures held by the
Trust, the Trust will not be able to pay any amounts payable in respect of the
preferred securities and will not have funds legally available for these
payments. The guarantee will rank subordinate and junior in right of payment to
all of our senior indebtedness. See "--Status of the Guarantee." The guarantee
does not limit our ability to incur or issue other secured or unsecured debt,
including senior indebtedness, whether under the indenture or any other
indenture that we may enter into in the future or otherwise.
We have through the guarantee, the trust agreement, the junior subordinated
debentures and the indenture, taken together, fully, irrevocably and
unconditionally guaranteed all the Trust's obligations under the preferred
securities on a subordinated basis. No single document standing alone or
operating in conjunction with fewer than all the other documents constitutes
such guarantee. Only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations in respect of the preferred securities. See "Relationship
Among the Preferred Securities, the Junior Subordinated Debentures and the
Guarantee."
Status of the Guarantee
The guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all of our senior indebtedness
and equally with the obligations associated with the outstanding preferred
securities of GBCI Capital Trust in the same manner as the junior subordinated
debentures.
The guarantee will constitute a guarantee of payment and not of collection.
This means that the guarantee trustee may institute a legal proceeding directly
against us as the guarantor to enforce its rights under the guarantee without
first instituting a legal proceeding against any other person or entity. The
guarantee will be held by the guarantee trustee for your benefit. The guarantee
will not be discharged except by payment of the guarantee payments in full to
the extent not paid by the Trust or distribution to the holders of the
preferred securities or the junior subordinated debentures.
Amendments and Assignment
Except with respect to any changes which do not materially adversely affect
your rights (in which case no consent will be required), the guarantee may not
be amended without the prior approval of the holders of not less than a
majority of the aggregate liquidation amount of the outstanding preferred
securities. The manner of obtaining any such approval is set forth under
"Description of Preferred Securities--Voting Rights; Amendment of Trust
Agreement." All guarantees and agreements contained in the guarantee shall bind
our successors, assigns, receivers, trustees and representatives and shall
inure to your benefit and the benefit of all of the holders of the preferred
securities then outstanding.
Events of Default
An event of default under the guarantee will occur if we fail to perform any
of our payment or other obligations under the guarantee, or to perform any non-
payment obligation if such non-payment default remains unremedied for 30 days.
The holders of not less than a majority in aggregate liquidation amount of the
outstanding preferred securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the guarantee
trustee in respect of the guarantee or to direct the exercise of any trust or
power conferred upon the guarantee trustee under the guarantee.
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You may institute a legal proceeding directly against us to enforce your
rights under the guarantee without first instituting a legal proceeding
against the Trust, the guarantee trustee or any other person or entity.
We are required, as guarantor, to certify annually to the guarantee trustee
whether or not we are in compliance with all the conditions and covenants
applicable to us under the guarantee.
Information Concerning the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance of
a default by us in performance of the guarantee, undertakes to perform only
such duties as are specifically set forth in the guarantee and, after the
occurrence of an event of default with respect to the guarantee, must exercise
the same degree of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this provision, the
guarantee trustee is under no obligation to exercise any of the powers vested
in it by the guarantee at your request unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur in
the exercise of these powers.
For information concerning our relationship with Bankers Trust Company, as
guarantee trustee, see "Description of Junior Subordinated Debentures--
Information Concerning the Debenture Trustee.
Termination of the Guarantee
The guarantee will terminate and be of no further force and effect upon
full payment of the redemption price of the preferred securities, upon full
payment of the amounts payable with respect to the preferred securities upon
liquidation of the Trust, or upon distribution of junior subordinated
debentures to you and the other holders of the preferred securities in
exchange for all of the preferred securities. The guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time you
must restore payment of any sums paid to you under the preferred securities or
the guarantee.
Governing Law
The guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR
SUBORDINATED DEBENTURES, AND THE GUARANTEE
Full and Unconditional Guarantee
We have irrevocably guaranteed, on a subordinate basis payments of
distributions and other amounts due on the preferred securities (to the extent
that Trust has funds available for such payment) and to the extent set forth
under "Description of Guarantee." Taken together, our obligations under the
junior subordinated debentures, the indenture, the trust agreement and the
guarantee provide, in the aggregate, a full, irrevocable and unconditional
guarantee of payments of distributions and other amounts due on the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all the other documents constitute such guarantee. It is only the
combined operation of these documents that has the effect of providing full,
irrevocable and unconditional guarantee of the Trust's obligations in respect
of the preferred securities.
If and to the extent that we do not make payments on the junior
subordinated debentures, the Trust will not have sufficient funds to pay
distributions or other amounts due on the preferred securities. The guarantee
does not cover payment of amounts payable with respect to the preferred
securities when the Trust does not have sufficient funds to pay such amounts.
In such event, your remedy is to institute a legal proceeding directly against
us for enforcement of our payment obligations under the junior subordinated
debentures having a principal amount equal to the liquidation amount of the
preferred securities you hold.
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Our obligations under the junior subordinated debentures and the guarantee
are subordinate and junior in right of payment to all senior indebtedness and
rank equally with our obligations associated with the outstanding preferred
securities of GBCI Capital Trust.
Sufficiency of Payments
As long as we make the payments on the junior subordinated debentures when
they are due, such payments will be sufficient to cover distributions and other
payments distributable on the preferred securities, primarily because:
. the aggregate principal amount of the junior subordinated debentures will
be equal to the sum of the aggregate stated liquidation amount of the
preferred securities and common securities;
. the interest rate and interest and other payment dates on the junior
subordinated debentures will match the distribution rate, distribution
dates and other payment dates for the preferred securities;
. we will pay for any and all costs, expenses and liabilities of the Trust
except the Trust's obligations to you and the holders of the common
securities; and
. the trust agreement further provides that the Trust will not engage in
any activity that is not consistent with the limited purposes of the
Trust.
Notwithstanding anything to the contrary in the indenture, we have the right
to set-off any payment we are otherwise required to make thereunder against and
to the extent we have previously made, or are concurrently on the date of such
payment making, a payment under the guarantee.
Enforcement Rights of Holders of Preferred Securities
You may institute a legal proceeding directly against us to enforce your
rights under the guarantee without first instituting a legal proceeding against
the guarantee trustee, the Trust or any other person or entity. See
"Description of Guarantee."
A default or event of default under any of our senior indebtedness would not
constitute a default or event of default in respect of the preferred
securities. However, in the event of payment defaults under, or acceleration of
our senior indebtedness, the subordination provisions of the indenture provide
that no payments may be made in respect of the junior subordinated debentures
until such senior indebtedness has been paid in full or any payment default on
senior indebtedness has been cured or waived. See "Description of Junior
Subordinated Debentures--Subordination."
Limited Purpose of Trust
The preferred securities represent preferred undivided beneficial interests
in the assets of the Trust, and the Trust exists for the sole purpose of
issuing the preferred securities and common securities and investing the
proceeds from their issuance in the junior subordinated debentures. A principal
difference between your rights as a holder of preferred securities and a holder
of a junior subordinated debenture is that a holder of a junior subordinated
debenture is entitled to receive from us payments on junior subordinated
debentures held, while you are entitled to receive distributions or other
amounts distributable with respect to the preferred securities from the Trust
(or from us under the Guarantee) only if and to the extent the Trust has funds
available for the payment of such distributions.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution of the Trust, other than any
such dissolution involving the distribution of the junior subordinated
debentures, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, you will be entitled to receive, out of assets held
by the Trust, the liquidation
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distribution in cash. See "Description of Preferred Securities--Liquidation
Distribution Upon Dissolution." If we are voluntarily or involuntarily
liquidated or declare bankruptcy, the Trust, as registered holder of the junior
subordinated debentures, will be our subordinated creditor, subordinated and
junior in right of payment to all our senior indebtedness as set forth in the
indenture, but entitled to receive payment in full of all amounts payable with
respect to the junior subordinated debentures before any of our stockholders
receive payments or distributions. Since we are the guarantor under the
guarantee and have agreed under the indenture to pay for all costs, expenses
and liabilities of the Trust (other than the Trust's obligations to you and the
holders of the common securities), your position as a holder of the preferred
securities and the position of a holder of such junior subordinated debentures
relative to other creditors and to our stockholders in the event of our
liquidation or bankruptcy are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General
The preferred securities and payments on the preferred securities generally
are subject to taxation. Therefore, you should consider the tax consequences of
owning and receiving payments on the preferred securities before acquiring
them.
We have engaged Blackwell Sanders Peper Martin LLP, Kansas City, Missouri as
special tax counsel ("Tax Counsel") to review the following discussion. They
have given us their written legal opinion that the discussion correctly
describes the principal aspects of the U.S. federal tax treatment of beneficial
owners ("Owners") of preferred securities.
The following discussion is general and may not apply to your particular
circumstances for any of the following (or other) reasons:
. This summary is based on federal tax laws in effect as of the date of
this prospectus. Changes to any of these laws after this date may affect
the tax consequences described below.
. This summary discusses only preferred securities you acquire at original
issuance at the original offering price and hold as capital assets
(within the meaning of federal tax law). It does not discuss all of the
tax consequences that may be relevant to Owners who are subject to
special rules, such as banks, thrift institutions, real estate investment
trusts, regulated investment companies, insurance companies, brokers and
dealers in securities or currencies, certain securities traders, tax-
exempt organizations and certain other financial institutions. This
discussion also does not discuss tax consequences that may be relevant to
an Owner in light of the Owner's particular circumstances, such as an
Owner holding a preferred security as a position in a straddle, hedging,
conversion or other integrated investment.
. This summary does not address:
(a) The income for tax consequences to stockholders in, or partners of
beneficiaries of, a holder of preferred securities;
(b) the United States alternative minimum tax consequences of
purchasing, owning and disposing of preferred securities; or
(c) any state, local or foreign tax consequences of purchasing, owning
and disposing of preferred securities.
The authorities on which this summary is based are subject to various
interpretations, and the opinions of Tax Counsel are not binding on the
Internal Revenue Service (the "IRS") or the courts, either of which could take
a contrary position. Moreover, no rulings have been or will be sought from the
IRS with respect to the transaction described herein. Accordingly, we cannot
assure you that the IRS will not challenge the opinion expressed herein or that
a court would not sustain such a challenge.
We advise you to consult your own tax advisors regarding the tax
consequences of purchasing, owning and disposing of the preferred securities
because the following discussion may not apply to you.
43
<PAGE>
U.S. Holders
In General. For purposes of the following discussion, a "U.S. Holder" means:
. a citizen or individual resident of the United States;
. a corporation or partnership created or organized in or under the laws of
the United States or any political subdivision thereof;
. an estate the income of which is includible in its gross income for U.S.
federal income tax purposes without regard to its source; or
. a trust if a court within the United States is able to exercise primary
supervision over its administration and at least one United States person
has the authority to control all substantial decisions of the trust.
Characterization of the Trust. Prior to the time that the preferred
securities are issued, Tax Counsel will give its opinion that (1) under then
current law and based on the representations, facts and assumptions set forth
in this prospectus, and (2) assuming full compliance with the terms of the
trust agreement (and other relevant documents), and (3) based on certain
assumption and qualifications referred to in the opinion, the Trust will be
characterized for United States federal income tax purposes as a grantor trust.
Accordingly, for United States federal income tax purposes, if you, as a U.S.
Holder, purchase a preferred security you will be considered the owner of an
undivided interest in the junior subordinated debentures owned by the Trust,
and you will be required to include all income or gain recognized for United
States federal income tax purposes with respect to your share of the junior
subordinated debentures on your income tax return.
Characterization of the Junior Subordinated Debentures. We intend to take
the position that, under current law, the junior subordinated debentures are
our debt for United States federal income tax purposes. We, along with the
Trust and you (by acceptance of a beneficial interest in a preferred security)
agree to treat the junior subordinated debentures as the Company's debt and the
preferred securities as evidence of a beneficial ownership interest in the
Trust. We cannot assure you, however, that such position will not be challenged
by the IRS or, if challenged, that a challenge will not be successful. The
remainder of this discussion assumes that the junior subordinated debentures
will be classified as our debt for United States federal income tax purposes.
Interest Income and Original Issue Discount. Under the terms of the junior
subordinated debentures, we have the ability to defer payments of interest from
time to time by extending the interest payment period for a period not
exceeding 20 consecutive quarterly periods, but not beyond the maturity of the
junior subordinated debentures. Treasury regulations provide that debt
instruments like the junior subordinated debentures will not be considered
issued with original issue discount ("OID") even if their issuer can defer
payments of interest if the likelihood of any deferral is "remote."
We have concluded, and this discussion assumes, that, as of the date of this
prospectus, the likelihood of our deferring payments of interest is "remote"
within the meaning of the applicable Treasury regulations. This conclusion is
based in part on the fact that exercising that option would prevent us from
declaring dividends on our common stock and would prevent us from making any
payments with respect to debt securities that rank equally with or junior to
the junior subordinated debentures. Therefore, the junior subordinated
debentures should not be treated as issued with OID by reason of our deferral
option. Rather, you will be taxed on stated interest on the junior subordinated
debentures when it is paid or accrued in accordance with your method of
accounting for income tax purposes. You should note, however, that no published
rulings or any other published authorities of the IRS have addressed this
issue. Accordingly, it is possible that the IRS could take a position contrary
to the interpretation described herein.
If we exercise our option to defer payments of interest, the junior
subordinated debentures would be treated as redeemed and reissued for OID
purposes. The sum of the remaining interest payments (and any de minimis OID)
on the junior subordinated debentures would thereafter be treated as OID. The
OID would accrue, and be includible in your taxable income, on an economic
accrual basis (regardless of your method of accounting for income tax purposes)
over the remaining term of the junior subordinated debentures (including
44
<PAGE>
any period of interest deferral), without regard to the timing of payments
under the junior subordinated debentures. Subsequent distributions of interest
on the junior subordinated debentures generally would not be taxable. The
amount of OID that would accrue in any period would generally equal the amount
of interest that accrued on the junior subordinated debentures in that period
at the stated interest rate. Consequently, during any period of interest
deferral, you will include OID in gross income in advance of the receipt of
cash, and if you dispose of a preferred security prior to the record date for
payment of distributions on the junior subordinated debentures following that
period, you will be subject to income tax on OID accrued through the date of
disposition (and not previously included in income), but you will not receive
cash from the Trust with respect to the OID.
If the possibility of our exercising our option to defer payments of
interest is not remote, the junior subordinated debentures would be treated as
initially issued with OID in an amount equal to the aggregate stated interest
(plus any de minimis OID) over the term of the junior subordinated debentures.
You would include that OID in your taxable income, over the term of the junior
subordinated debentures, on an economic accrual basis.
Characterization of Income. Because the income underlying the preferred
securities will not be characterized as dividends for income tax purposes, if
you are a corporate holder of the preferred securities you will not be entitled
to a dividends-received deduction for any income you recognize with respect to
the preferred securities.
Market Discount and Bond Premium. Under certain circumstances, you may be
considered to have acquired your undivided interests in the junior subordinated
debentures with market discount or bond premium (as each phrase is defined for
United States federal income tax purposes).
Receipt of Junior Subordinated Debentures or Cash Upon Liquidation of the
Trust. Under certain circumstances described above (See "Description of the
Preferred Securities--Liquidation Distribution Upon Dissolution"), the Trust
may distribute the junior subordinated debentures to you in exchange for your
preferred securities and in liquidation of the Trust. Except as discussed
below, such a distribution would not be a taxable event for United States
federal income tax purposes, and you would have an aggregate adjusted basis in
the junior subordinated debentures you receive for United States federal income
tax purposes equal to your aggregate adjusted basis in your preferred
securities. For United States federal income tax purposes, your holding period
in the junior subordinated debentures you receive in such a liquidation of the
Trust would include the period during which you held the preferred securities.
If, however, the relevant event is a Tax Event that results in the Trust being
treated as an association taxable as a corporation, the distribution would
likely constitute a taxable event to you for United States federal income tax
purposes.
Under certain circumstances described herein (see "Description of the
Preferred Securities"), we may redeem junior subordinated debentures for cash
and distribute the proceeds of such redemption to you in redemption of your
preferred securities. Such a redemption would be taxable for United States
federal income tax purposes, and you would recognize gain or loss as if you had
sold the preferred securities for cash. See "--Sales of Preferred Securities"
below.
Sales of Preferred Securities. If you sell preferred securities, you will
recognize gain or loss equal to the difference between your adjusted basis in
the preferred securities and the amount realized on the sale of such preferred
securities. Your adjusted basis in the preferred securities generally will be
the initial purchase price, increased by OID previously included (or currently
includible) in your gross income to the date of disposition, and decreased by
payments received on the preferred securities (other than any interest received
with respect to the period prior to the effective date we first exercise our
option to defer payments of interest). Any such gain or loss generally will be
capital gain or loss, and generally will be a long-term capital gain or loss if
you have held the preferred securities for more than one year prior to the date
of disposition.
45
<PAGE>
If you dispose of your preferred securities between record dates for
payments of distributions thereon, you will be required to include accrued but
unpaid interest (or OID) on the junior subordinated debentures through the date
of disposition in your taxable income for United States federal income tax
purposes (notwithstanding that you may receive a separate payment from the
purchaser with respect to accrued interest). You may deduct that amount from
the sales proceeds received (including the separate payment, if any, with
respect to accrued interest) for the preferred securities (or as to OID only,
to add such amount to your adjusted tax basis in the preferred securities). To
the extent the selling price is less than your adjusted tax basis (which will
include accrued but unpaid OID if any), you will recognize a capital loss.
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes.
Pending Tax Litigation Affecting the Preferred Securities
Last year, a taxpayer filed a petition in the United States Tax Court
contesting the IRS's disallowance of interest deductions that taxpayer claimed
in respect of securities issued in 1993 and 1994 that are, in some respects,
similar to the preferred securities. (Enron Corp. v. Commissioner, Docket No.
6149-98, filed April 1, 1998). An adverse decision by the Tax Court concerning
the deductibility of such interest may cause a Tax Event. Such a Tax Event
would give us the right to redeem the junior subordinated debentures. See
"Description of Junior Subordinated Debentures--Redemption" and "Description of
PreferredSecurities--Liquidation Distribution Upon Dissolution."
Non-U.S. Holders
The following discussion applies to you if you are not a U.S. Holder as
described above.
Payments to you, as a non-U.S. Holder, on a preferred security will
generally not be subject to withholding of income tax, provided that:
. you did not (directly or indirectly, actually or constructively) own 10%
or more of the total combined voting power of all classes of our stock
entitled to vote;
. you are not a controlled foreign corporation that is related to us
through stock ownership; and
. either (a) you certify to the Trust or its agent under penalties of
perjury, that you are not a U.S. Holder and provide your name and
address, or (b) a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary
course of its trade or business, and holds the preferred security in such
capacity, certifies to the Trust or its agent, under penalties of
perjury, that it requires and has received such a statement from you or
another financial institution between it and you in the chain of
ownership, and furnishes the Trust or its agent with a copy thereof.
As discussed above, it is possible that changes in the law affecting the
income tax consequences of the junior subordinated debentures could adversely
affect our ability to deduct interest payable on the junior subordinated
debentures. Such changes could also cause the junior subordinated debentures to
be classified as our equity (rather than our debt) for United States federal
income tax purposes. This might cause the income derived from the junior
subordinated debentures to be characterized as dividends, generally subject to
a 30% income tax (on a withholding basis) when paid to you if you are not a
U.S. Holder, rather than as interest which, as discussed above, generally is
exempt from income tax in the hands of a person who is not a U.S. Holder.
You, as a non-U.S. Holder, will generally not be subject to withholding of
income tax on any gain realized upon the sale or other disposition of a
preferred security.
If you hold the preferred securities in connection with the active conduct
of a United States trade or business, you will be subject to income tax on all
income and gains recognized with respect to your proportionate share of the
junior subordinated debentures.
46
<PAGE>
Information Reporting
In general, information reporting requirements will apply to payments made
on, and proceeds from the sale of, the preferred securities held by a
noncorporate U.S. Holder within the United States. In addition, payments made
on, and payments of the proceeds from the sale of, the preferred securities to
or through the United States office of a broker are subject to information
reporting unless you certify as to your non-U.S. Holder status or otherwise
establish an exemption from information reporting and backup withholding. See
"--Backup Withholding." Taxable income on the preferred securities for a
calendar year should be reported to U.S. Holders on the appropriate forms by
the following January 31st.
Backup Withholding
Payments made on, and proceeds from the sale of, the preferred securities
may be subject to a "backup" withholding tax of 31% unless you comply with
certain identification or exemption requirements. Any amounts so withheld will
be allowed as a credit against your income tax liability, or refunded, provided
the required information is provided to the IRS.
The preceding discussion is only a summary and does not address the
consequences to particular person of the purchase, ownership and disposition of
the preferred securities. You are urged to contact your own tax advisor to
determine your particular tax consequences.
CERTAIN ERISA CONSIDERATIONS
We and certain of our affiliates may each be considered a "party in
interest" within the meaning of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a "disqualified person" within the meaning of
Section 4975 of the Code with respect to many employee benefit plans that are
subject to ERISA and individual retirement accounts ("IRAs"). The purchase of
the preferred securities by an employee benefit plan or IRA that is subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions Section 4975(e)(1) of the Code and with respect to which we, or any
affiliate of ours is a service provider (or otherwise is a party in interest or
a disqualified person), may constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code, unless the preferred securities are
acquired pursuant to and in accordance with an applicable exemption. Any
pension or other employee benefit plan, fiduciary or IRA holder, proposing to
acquire any preferred securities for such a plan or IRA should consult with
legal counsel.
47
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the underwriting agreement, dated
, among us, the Trust and Advest, Inc. and U.S. Bancorp Piper
Jaffray Inc., as representatives of the underwriters, the Trust has agreed to
sell to the underwriters, and the underwriters have severally agreed to
purchase from the Trust, the following respective aggregate liquidation amounts
of preferred securities at the public offering price less the underwriting
discounts and commissions set forth on the cover page of this prospectus:
<TABLE>
<CAPTION>
Liquidation Amount of
Underwriter Preferred Securities
----------- ---------------------
<S> <C>
Advest, Inc......................................... $
U.S. Bancorp Piper Jaffray Inc......................
-----------
Total........................................... $35,000,000
===========
</TABLE>
The underwriting agreement provides that the obligations of the underwriters
are subject to certain conditions precedent and that the underwriters will
purchase all of the preferred securities offered hereby if any of such
preferred securities are purchased.
The underwriters have advised us that they propose to offer the preferred
securities to the public at the public offering price set forth on the cover
page of this prospectus and to certain dealers at such price less a concession
not in excess of $ per preferred security. The underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per preferred
security to certain other dealers. After the public offering, the offering
price and other selling terms may be changed by the underwriters. In addition,
we have agreed to pay a financial advisory fee to Advest, Inc. of $25,000 in
connection with the offering.
We have granted to the underwriters an option, exercisable not later than 30
days after the date of the underwriting agreement, to purchase up to an
additional $5,250,000 aggregate liquidation amount of the preferred securities
at the public offering price. To the extent that the underwriters exercise such
option, we will be obligated, pursuant to the option, to sell such preferred
securities to the underwriters. The underwriters may exercise such option only
to cover over-allotments made in connection with the sale of the preferred
securities offered in this prospectus. If purchased, the underwriters will
offer these additional preferred securities on the same terms as those on which
the $35,000,000 aggregate liquidation amount of the preferred securities are
being offered.
In connection with this offering, the underwriters and any selling group
members and their respective affiliates may engage in transactions effected in
accordance with Rule 104 of the SEC's Regulation M that are intended to
stabilize, maintain or otherwise affect the market price of the preferred
securities. Such transactions may include over-allotment transactions in which
the underwriters create a short position for their own account by selling more
preferred securities than they are committed to purchase from the Trust. In
such a case, to cover all or part of the short position, the underwriters may
exercise the over-allotment option described above or may purchase preferred
securities in the open market following completion of the initial offering of
the preferred securities. The underwriters also may engage in stabilizing
transactions in which they bid for, and purchase, shares of the preferred
securities at a level above that which might otherwise prevail in the open
market for the purpose of preventing or retarding a decline in the market price
of the preferred securities. The underwriters also may reclaim any selling
concessions allowed to an underwriter or dealer if the underwriters repurchase
shares distributed by that underwriter or dealer. Any of the foregoing
transactions may result in the maintenance of a price for the preferred
securities at a level above that which might otherwise prevail in the open
market. We do not, nor do any of the underwriters, make any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the preferred securities. The
underwriters are not required to engage in any of the foregoing transactions
and, if commenced, such transactions may be discontinued any time without
notice.
In view of the fact that the proceeds from the sale of the preferred
securities will be used purchase our junior subordinated debentures, the
underwriting agreement provides that we will pay as compensation for the
underwriters' arranging the investment of such proceeds an amount of $ per
preferred security (or $ ($ if the over-allotment option is
exercised in full) in the aggregate).
48
<PAGE>
Because the National Association of Securities Dealers, Inc. is expected to
view the preferred securities as interests in a direct participation program,
this offering is being made in compliance with the applicable provisions of
Rule 2810 of the NASD's Conduct Rules.
The preferred securities are a new issue of securities with no established
trading market. The representatives have advised the Trust and us that they
intend to make a market in the preferred securities. However, the underwriters
are not obligated to do so and such market making may be interrupted or
discontinued at any time without notice at the sole discretion of each of the
underwriters. We have applied to have the preferred securities approved for
quotation on the Nasdaq National Market but a requirement for initial listing,
and for continued listing, is the presence of three, and two, market makers,
respectively, for the preferred securities, and the presence of a third market
maker cannot be assured. Accordingly, no assurance can be given as to the
development or liquidity of any market for the preferred securities.
We have agreed to indemnify the underwriters against certain liabilities,
including liabilities under the Securities Act.
The representatives and certain of the other underwriters have in the past,
and may in the future perform various services for us, including investment
banking services, for which they have may receive customary fees. Advest, Inc.
also served as managing underwriter in our public offerings of common stock in
1996 and trust preferred securities in 1997, and has advised us in certain of
our acquisitions.
VALIDITY OF SECURITIES
The validity of the guarantee and the junior subordinated debentures and
certain tax matters will be passed upon for us by Blackwell Sanders Peper
Martin LLP, Kansas City, Missouri, our counsel, and certain legal matters will
be passed upon for the underwriters by Arnold & Porter, Washington, D.C. and
New York, New York. Certain matters of Delaware law relating to the validity of
the preferred securities, the enforceability of the trust agreement and the
creation of the Trust will be passed upon by Richards, Layton & Finger, as
special Delaware counsel to us and the Trust. Blackwell Sanders Peper Martin
LLP and Arnold & Porter will rely as to certain matters of Delaware law on the
opinion of Richards, Layton & Finger. Arnold & Porter will rely as to certain
matters of Kansas law on the opinion of Blackwell Sanders Peper Martin LLP.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference are incorporated by reference from our Annual Report on Form 10-K for
the fiscal year ended December 31, 1998, have been audited by KPMG LLP,
independent auditors, as stated in their report, which is incorporated here by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, and in accordance with the Exchange Act, we file
reports, proxy statements, information statements and other information with
the SEC. Such reports, proxy statements and other information can be inspected
and copied at the public reference facilities of the SEC at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices of the
SEC located at 7 World Trade Center, 13th Floor, Suite 1300, New York, New York
10048 and Suite 1400, Citicorp Center, 14th Floor, 50 West Madison Street,
Chicago, Illinois 60661. You may obtain information on the operation of the
public reference room by calling the SEC at 1-800-SEC-0330. Copies of this
material can also be obtained at prescribe rates by writing to the Public
Reference Section of the
49
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SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. This material also may
be accessed electronically by means of the SEC's home page on the Internet at
www.sec.gov.
Our common stock trades on the Nasdaq National Market under the symbol
"GLDB." Documents filed by us with the SEC also can be inspected at the offices
of the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
We have filed a registration statement on Form S-3 with the SEC under the
Securities Act in connection with the offering. This prospectus does not
contain all of the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. The registration statement, including any amendments, schedules and
exhibits thereto, is available for inspection and copying as set forth above.
Statements contained in this prospectus as to the contents of any contract or
other document referred to in this document include all material terms of such
contract or other documents but are not necessarily complete, and in each
instance reference is made to the copy of any such contract or other document
which may have been filed as an exhibit to the registration statement, each
such statement being qualified in all respects by such reference.
No separate financial statements of the Trust have been included or
incorporated by reference in this document. We do not, nor does the Trust,
consider that such financial statements would be material to holders of the
preferred securities because the Trust is a newly formed special purpose
entity, has no operating history or independent operations and is not engaged
in and does not propose to engage in any activity other than holding as trust
assets the junior subordinated debentures and issuing the preferred securities
and common securities. See "GBCI Capital Trust II," "Description of Preferred
Securities," "Description of Junior Subordinated Debentures" and "Description
of Guarantee." In addition, we do not expect that the Trust will be filing
reports under the Exchange Act with the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Our Annual Report on Form 10-K for the fiscal year ended December 31, 1998
is incorporated into this prospectus by reference.
In addition, all subsequent documents filed with the SEC by us pursuant
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus shall be deemed to be incorporated by reference into this prospectus
and to be a part hereof from the date of filing such documents. Any statement
contained in this prospectus or in a document incorporated or deemed to be
incorporated by reference in this prospectus or another such document shall be
deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or another such document
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modified or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
superseded, to constitute a part of this prospectus.
This prospectus incorporates documents by reference which are not presented
here or delivered with this document. These documents (excluding exhibits
unless specifically incorporated in these documents) are available without
charge upon written or oral request from Gold Banc Corporation, Inc., 11301
Nall Avenue, Leawood, Kansas 66211, attention: Corporate Secretary, telephone:
(913) 451-8050.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This prospectus (including information included or incorporated by reference
herein) contains forward-looking statements with respect to our financial
condition, results of operations, plan objectives, future performance and
business, including statements preceded by, followed by or that include the
words, "believes," "expects," "anticipates" or similar expressions. These
forward-looking statements involve certain risks and uncertainties and may
relate to our future operating results.
50
<PAGE>
Factors that may cause actual results to differ materially from those
contemplated by such forward-looking statements include, among others, the
following possibilities:
. expected cost savings from our acquisitions not being fully realized or
realized within the expected time frame;
. earnings following acquisitions being lower than expected;
. a significant increase in competitive pressure among depository and other
financial institutions;
. costs or difficulties related to the integration of the acquired
businesses being greater than expected;
. changes in the interest rate environment resulting in reduced margins;
. general economic or business conditions, either nationally or in Kansas,
Oklahoma or Missouri, being less favorable than expected, resulting in,
among other things, a deterioration in credit quality or a reduced demand
for credit;
. legislative or regulatory changes adversely affecting the businesses in
which we will be engaged;
. changes in the securities markets; and
. changes in the banking industry including, the effects of consolidation
resulting from possible mergers of financial institutions.
51
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
No person has been authorized in connection with the offering made hereby to
give any information or to make any representation not contained in this pro-
spectus and, if given or made, such information or representation must not be
relied upon as having been authorized by us or any underwriter. This prospec-
tus does not constitute an offer to sell or a solicitation of any offer to buy
any of the securities offered hereby to any person or by anyone in any juris-
diction in which it is unlawful to make such offer or solicitation. Neither
the delivery of this prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information contained herein is
correct as of any date subsequent to the date hereof.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary........................................................ 1
Selected Consolidated Financial Data...................................... 7
Risk Factors.............................................................. 8
Use of Proceeds........................................................... 14
GBCI Capital Trust II..................................................... 16
Accounting Treatment...................................................... 16
Description of Preferred Securities....................................... 16
Description of Junior Subordinated Debentures............................. 29
Description of Guarantee.................................................. 39
Relationship Among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee............................................. 41
Certain Federal Income Tax Consequences................................... 43
Certain ERISA Considerations.............................................. 47
Underwriting.............................................................. 48
Validity of Securities.................................................... 49
Experts................................................................... 49
Where You Can Find More Information....................................... 49
Incorporation of Certain Documents by Reference........................... 50
Cautionary Statement Concerning Forward-Looking Information............... 50
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[LOGO]
GBCI CAPITAL TRUST II
% preferred securities
(liquidation amount $ per
preferred security)
guaranteed as described herein by
GOLD BANC CORPORATION, INC.
---------------
PROSPECTUS
---------------
ADVEST, INC.
U.S. BANCORP PIPER JAFFRAY
, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of estimated expenses to be paid by
the Registrant in connection with the issuance and sale of the securities being
registered.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee...............
NASD Filing Fee...................................................
Nasdaq Fees.......................................................
Accounting fees and expenses......................................
Printing expenses.................................................
Legal fees and expenses...........................................
Transfer Agent Fees and Expenses..................................
------
Total......................................................... $
======
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Company Articles and the Company Amended and Restated Bylaws require it
to indemnify its directors and officers and advisory directors against
liabilities, fines, penalties, settlements, claims and reasonable expenses
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service in those capacities to the fullest extent
permitted by the Kansas General Corporation Code ("KGCC"). The KGCC permits a
corporation to indemnify its present and former directors and officers if
ordered to do so by a court or after a determination by its independent
counsel, stockholders or a majority of its disinterested directors that the
person to be indemnified acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation.
Pursuant to express authority conferred in the Company's Amended and
Restated Bylaws, the Company maintains a policy of insurance, under which the
insurer will, subject to certain conditions, defend the directors and officers
of the Company against and indemnify them from any liabilities in capacities as
such.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or controlling persons pursuant to the
foregoing provisions, the Company has been informed that in the opinion of the
SEC such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 16. Exhibits
The following exhibits are filed herewith or incorporated herein by
reference pursuant to Rule 411 of the Securities Act of 1933, as amended.
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S> <C>
1 Form of Underwriting Agreement
3(a)(i) Amended and Restated Articles of Incorporation of the
Company*
3(a)(ii) Certificate of Amendment to Restated Articles of
Incorporation**
3(b) Restated Bylaws of the Company*
4(a) Form of Junior Subordinated Indenture
4(b) Form of Junior Subordinated Debenture (included in Exhibit
4(a))
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
4(c) Form of Amended and Restated Trust Agreement
<C> <S> <C>
4(d) Form of Preferred Security (included in Exhibit 4(c))
4(e) Form of Guarantee Agreement
5(a) Opinion of Blackwell Sanders Peper Martin LLP
5(b) Opinion of Richards, Layton & Finger***
8 Tax Opinion of Blackwell Sanders Peper Martin LLP
23(a) Consent of KPMG LLP
23(b) Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibits 5 and 8)
23(c) Consent of Richards, Layton & Finger***
24 Powers of Attorney (included in signature pages to
Registration Statement)
25 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Bankers Trust Company, as trustee
under the Junior Subordinated Indenture, the Amended and
Restated Trust Agreement and the Guarantee agreement
relating to GBCI Capital Trust II
</TABLE>
- --------
* Previously filed as an Exhibit to the Company's Registration Statement on
Form SB-2 No. 333-12377 and the same is incorporated herein by reference.
** Previously filed as an Exhibit to the Company's Registration Statement on
Form S-4 No. 333-28563 and the same is incorporated herein by reference.
*** To be filed by Amendment.
Item 17. Undertakings.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant of the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceedings) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(b) The undersigned Registrant hereby undertakes to, for purposes of
determining any liability under the Securities Act, treat the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant under Rule 424(b)(1), or (4) or 497(h) under the
Securities Act as part of this registration statement as of the time the SEC
declared it effective.
(c) The undersigned Registrant hereby undertakes to, for purposes of
determining any liability under the Securities Act, treat each post-effective
amendment that contains a form of prospectus as a new registration statement
for the securities offered in the registration statement, and that offering of
the securities at that time as the initial bona fide offering of those
securities.
II-2
<PAGE>
(d) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Leawood, State of Kansas, on the 15th day of April,
1999:
Gold Banc Corporation, Inc.
/s/ Michael W. Gullion
By: _________________________________
Michael W. Gullion
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors of Gold
Banc Corporation, Inc., hereby severally constitute Michael W. Gullion and
Keith E. Bouchey, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement filed herewith and
any and all amendments to said Registration Statement, any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, and generally to do all such things in our names and in our capacities
as directors to enable Gold Banc Corporation, Inc. to comply with the
provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signature as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael W. Gullion Chairman of the Board and April 15, 1999
____________________________________ Chief Executive Officer
Michael W. Gullion (Principal Executive
Officer)
/s/ Malcolm M. Aslin Director, President and April 15, 1999
____________________________________ Chief Operating Officer
Malcolm M. Aslin
/s/ Keith E. Bouchey Director, Executive Vice April 15, 1999
____________________________________ President, Chief Financial
Keith E. Bouchey Officer and Corporate
Secretary (Principal
Financial Officer)
/s/ Brian J. Ruisinger Treasurer and Controller April 15, 1999
____________________________________ (Principal Accounting
Brian J. Ruisinger Officer)
/s/ William Wallman Director April 15, 1999
____________________________________
William Wallman
/s/ D. Michael Browne Director April 16, 1999
____________________________________
D. Michael Browne
/s/ William F. Wright Director April 16, 1999
____________________________________
William F. Wright
/s/ Allen D. Petersen Director April 15, 1999
____________________________________
Allen D. Petersen
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S> <C>
1 Form of Underwriting Agreement
3(a)(i) Amended and Restated Articles of Incorporation of the Company*
3(a)(ii) Certificate of Amendment to Restated Articles of
Incorporation**
3(b) Restated Bylaws of the Company*
4(a) Form of Junior Subordinated Indenture
4(b) Form of Junior Subordinated Debenture (included in Exhibit
4(a))
4(c) Form of Amended and Restated Trust Agreement
4(d) Form of Preferred Security (included in Exhibit 4(c))
4(e) Form of Guarantee Agreement
5(a) Opinion of Blackwell Sanders Peper Martin LLP
5(b) Opinion of Richards, Layton & Finger***
8 Tax Opinion of Blackwell Sanders Peper Martin LLP
23(a) Consent of KPMG LLP
23(b) Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibits 5 and 8)
23(c) Consent of Richards, Layton & Finger***
24 Powers of Attorney (included in signature pages to Registration
Statement)
25 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of Bankers Trust Company, as trustee under the
Junior Subordinated Indenture, the Amended and Restated Trust
Agreement and the Guarantee agreement relating to GBCI Capital
Trust II
</TABLE>
- --------
*Previously filed as an Exhibit to the Company's Registration Statement on Form
SB-2 No. 333-12377 and the same is incorporated herein by reference.
**Previously filed as an Exhibit to the Company's Registration Statement on
Form S-4 No. 333-28563 and the same is incorporated herein by reference.
***To be filed by Amendment.
<PAGE>
Exhibit 1
$__________*
GBCI CAPITAL TRUST II
GOLD BANC CORPORATION, INC.
_____% Preferred Securities
(Liquidation Amount $__ per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
___________, 1999
ADVEST, INC.
U.S. BANCORP PIPER JAFFRAY INC.
As Representatives of the Several
Underwriters Named in Schedule I Hereto
c/o Advest, Inc.
One Rockefeller Plaza, 20th Floor
New York, New York 10020
Ladies and Gentlemen:
GBCI Capital Trust II (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and Gold Banc Corporation, Inc., a Kansas corporation
(the "Company"), as depositor of the Trust and as guarantor, hereby confirm
their agreement with you and the several underwriters, on whose behalf you have
been duly authorized to act as their representative (the "Representatives"), as
follows:
1. Introduction. Upon the terms and conditions set forth in this
Underwriting Agreement (this "Agreement"), the Trust agrees to, and the Company
agrees to cause the Trust to, issue and sell to the several underwriters
identified in Schedule I annexed hereto (the "Underwriters"), who are acting
severally and not jointly, an aggregate liquidation amount of $__________ (the
"Firm Securities") of the Trust's _____% preferred securities (the "Preferred
Securities"). The Trust also proposes to, and the Company also proposes to cause
the Trust to, issue and sell to the Underwriters, at the Underwriters' option,
up to an additional $________ aggregate liquidation amount of Preferred
- ----------
* Plus an option to acquire up to an additional $________ aggregate liquidation
amount of Preferred Securities from the Trust to cover over-allotments.
<PAGE>
Securities (the "Option Securities") as set forth herein. The term "Preferred
Securities" as used herein, unless indicated otherwise, shall mean the Firm
Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement to be dated as of _____________, 1999 (the "Trust Agreement"), among
the Company, as depositor, and, together with the Trust, the "Offerors," and
Bankers Trust Company ("Trust Company"), a New York banking corporation, as
property trustee ("Property Trustee") and Bankers Trust (Delaware) ("Trust
Delaware"), a Delaware banking corporation, as Delaware trustee ("Delaware
Trustee"), and the holders from time to time of undivided interests in the
assets of the Trust. The Preferred Securities will be guaranteed by the Company
on a subordinated basis and subject to certain limitations with respect to
distributions and payments upon liquidation, redemption or otherwise (the
"Guarantee") pursuant to the Guarantee Agreement to be dated as of __________,
1999 (the "Guarantee Agreement"), between the Company and the Trust Company, as
Trustee (the "Guarantee Trustee"). The assets of the Trust will consist of
_____% junior subordinated deferrable interest debentures, due ________________
(the "Subordinated Debentures") of the Company which will be issued under a
Junior Subordinated Indenture to be dated as of __________, 1999 (the
"Indenture"), between the Company and the Trust Company, as Trustee (the
"Indenture Trustee"). Under certain circumstances, the Subordinated Debentures
will be distributable to the holders of undivided beneficial interests in the
assets of the Trust. The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of the Trust's common securities (the "Common Securities"), and
will be used by the Trust to purchase an equivalent amount of the Subordinated
Debentures.
2. Representations and Warranties. Each of the Offerors represents and
warrants to, and agrees with, each of the Underwriters as follows:
(a) The Offerors meet the requirements for the use of Form S-3
under the Securities Act. The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. ___-_____ and ___-_____-__) and a related preliminary prospectus for the
registration of the Preferred Securities, the Guarantee and the Subordinated
Debentures under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations thereunder (the "Securities Act Regulations"). The
Offerors have prepared and filed such amendments thereto, if any, and such
amended preliminary prospectuses, if any, as may have been required to the date
hereof, and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. The registration statement has been
declared effective under the Securities Act by the Commission. The registration
statement as amended at the time it became effective (including the Prospectus
and all information deemed to be a part of the registration statement at the
time it became effective pursuant to Rule 430A(b) of the Securities Act
Regulations) is hereinafter called the "Registration Statement," except that, if
the Company files a post-effective amendment to such registration statement
which becomes effective prior to the Closing Date (as defined below),
"Registration Statement" shall refer to such registration statement as so
amended. Each prospectus included in the registration statement, or
2
<PAGE>
amendments thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Securities Act Regulations
(including the documents incorporated by reference therein) is hereinafter
called the "Preliminary Prospectus." The term "Prospectus" means the final
prospectus (including the documents incorporated by reference therein, if any),
as first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Securities Act Regulations. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus.
(b) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Kansas with full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Prospectus (as defined
in Section 2(a) of this Agreement); the Company is duly registered under the
Bank Holding Company Act of 1956, as amended (the "BHCA"); the Company has no
subsidiaries except those described in the Registration Statement (each a
"Subsidiary"); the Company owns, directly or indirectly, beneficially and of
record all of the outstanding capital stock of each Subsidiary free and clear of
any claim, lien, encumbrance or security interest, except as described in the
Prospectus. The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which any of them own or lease properties, has an office, or in which the
business conducted by any of them make such qualification necessary, except
where the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, assets, properties,
results of operations, or net worth of the Company and its Subsidiaries taken as
a whole ("Material Adverse Effect"); and no proceeding has been instituted in
any jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(c) The Preferred Securities have been duly and validly
authorized for issuance and sale to the Underwriters pursuant to this Agreement
and, when executed and authenticated in accordance with the terms of the Trust
Agreement and delivered to the Underwriters against payment of the consideration
set forth herein, will constitute valid and legally binding obligations of the
Trust enforceable in accordance with their terms and entitled to the benefits
provided by the Trust Agreement (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)). The Trust Agreement has been duly authorized
and, when executed by the proper officers of the Trust and delivered by the
Trust, will have been duly executed and delivered by the Trust and, assuming due
authorization and execution of the Trust Agreement by each other party thereto,
will constitute the valid and legally binding instrument of the Trust,
enforceable in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
readjustment of debt, moratorium, fraudulent conveyance or similar laws relating
to or affecting creditors' rights generally or general equity principles
(whether considered in a proceeding in equity or at law)). The Subordinated
Debentures have been duly and validly authorized for delivery by the Company
and, when duly authenticated in accordance with the terms of the Indenture and
3
<PAGE>
delivered to the Trust against payment of the consideration set forth herein,
will constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally
or general equity principles (whether considered in a proceeding in equity or at
law)) and entitled to the benefits provided by the Indenture. The Indenture has
been duly authorized and, when executed by the proper officers of the Company
and delivered by the Company, will have been duly executed and delivered by the
Company and, assuming due authorization and execution of the Indenture by other
each party thereto, will constitute the valid and legally binding instrument of
the Company, enforceable in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally
or general equity principles (whether considered in a proceeding in equity or at
law)). The Guarantee Agreement has been duly authorized and, when executed by
the proper officers of the Company and delivered by the Company, will have been
duly executed and delivered by the Company and, assuming due authorization and
execution of the Guarantee by each other party thereto, will constitute the
valid and legally binding instrument of the Company, enforceable in accordance
with its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, readjustment of debt,
moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally or general equity principles (whether considered in
a proceeding in equity or at law)). The Trust Agreement, the Guarantee
Agreement, and the Indenture have been duly qualified under the Trust Indenture
Act; and the Preferred Securities, the Common Securities, the Trust Agreement,
the Guarantee Agreement, the Subordinated Debentures and the Indenture conform
in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(d) Neither the Trust nor the Company or any Subsidiary, is,
or with the giving of notice or lapse of time or both will be, in violation or
breach of, or in default under, nor will the execution or delivery of, or the
performance and consummation of the transactions contemplated by this Agreement
(including the offer, sale, or delivery of the Preferred Securities), conflict
with, or result in a violation or breach of, or constitute a default under, any
provision of the organization documents of the Trust or the Articles of
Incorporation (as amended or restated), Bylaws (as amended or restated) of the
Company, or other governing documents of the Trust, the Company or any
Subsidiary, or of any provision of any agreement, contract, mortgage, deed of
trust, lease, loan agreement, indenture, note, bond, or other evidence of
indebtedness, or other material agreement or instrument to which the Trust, the
Company or any Subsidiary is a party or by which any of them is bound or to
which any of their properties is subject, nor will the performance by the
Offerors of their obligations hereunder violate any rule, regulation, order, or
decree, applicable to the Trust, the Company or any Subsidiary of any court or
any regulatory body, administrative agency, or other governmental body having
jurisdiction over the Trust, the Company or any Subsidiary or any of their
respective properties, or any order of any court or governmental agency or
authority entered in any proceeding to
4
<PAGE>
which the Trust, the Company or any Subsidiary was or is now a party or by which
it is bound, except those, if any, described in the Prospectus or which are not
material to the Company and the Trust taken as a whole. No consent, approval,
filing, authorization, registration, qualification, or order, including with or
by any bank regulatory agency, is required for the execution, delivery, and
performance of this Agreement or the consummation of the transactions
contemplated by this Agreement, other than such that have been obtained or made,
except for compliance with the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Blue Sky Laws applicable to the
public offering of the Preferred Securities by the Underwriters, the clearance
of such offering and the underwriting arrangements evidenced hereby with the
National Association of Securities Dealers, Inc. ("NASD"), and the listing of
the Preferred Securities on the Nasdaq Stock Market. This Agreement has been
duly authorized, executed and delivered by the Company and the Trust and
constitutes a valid and binding obligation of the Company and the Trust and is
enforceable against the Company and the Trust in accordance with its terms.
(e) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus complies in all material respects with the requirements of the
Securities Act and the Securities Act Regulations. As of the effective date of
the Registration Statement, and at all times subsequent thereto up to the
Closing Date or any Option Closing Date (as defined below), the Registration
Statement and the Prospectus, and any amendments or supplements thereto,
contained or will contain all material statements that are required to be stated
therein in accordance with the Securities Act and the Securities Act Regulations
and conformed or will conform in all material respects to the requirements of
the Securities Act and the Securities Act Regulations, and neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
no representation or warranty is made as to information contained in or omitted
from the Registration Statement, the Prospectus or any amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company and the Trust by or on behalf of the Underwriters.
(f) KPMG LLP, which has audited, reviewed, and expressed its
opinion with respect to certain of the financial statements and schedules filed
with the Commission as a part of the Registration Statement and included or to
be included, as the case may be, in the Prospectus and in the Registration
Statement, and whose report is included in the Prospectus and the Registration
Statement, are independent accountants as required by the Securities Act and the
Securities Act Regulations.
(g) The financial statements and schedules and the related
notes thereto included or to be included, as the case may be, in the
Registration Statement, the Preliminary Prospectus, and the Prospectus present
fairly the financial position of the entities purported to be shown thereby as
of the respective dates of such financial statements and schedules, and the
results of operations and changes in equity and in cash flows of the entities
purported to be shown thereby for the respective periods covered thereby, all in
conformity with generally accepted accounting principles consistently
5
<PAGE>
applied throughout the periods involved, except as may be disclosed in the
Prospectus. All adjustments necessary for a fair presentation of the results of
such periods have been made. The Company had an outstanding capitalization as
set forth under "Capitalization" in the Prospectus as of the date indicated
therein and there has been no material change therein since such date except as
disclosed in the Prospectus. The financial, operating, and statistical
information set forth in the Prospectus under captions "Prospectus Summary,"
"Selected Consolidated Financial Data," "Use of Proceeds," and "Capitalization"
are fairly presented and prepared on a basis consistent with the audited
financial statements of the Company.
(h) There is no litigation or governmental proceeding, action,
or investigation pending or, to the knowledge of the Trust or the Company,
threatened, to which the Trust, the Company or any Subsidiary is or may be a
party or to which property owned or leased by the Company or any Subsidiary is
or may be subject, or related to environmental or discrimination matters, which
is required to be disclosed in the Registration Statement or the Prospectus by
the Securities Act or the Securities Act Regulations and is not so disclosed, or
which questions the validity of this Agreement or any action taken or to be
taken pursuant hereto.
(i) Either the Company or a Subsidiary, as the case may be,
has good and marketable title in fee simple to all items of real property and
good and marketable title to all the personal properties and assets reflected as
owned by the Company or a Subsidiary in the Prospectus (or elsewhere in the
Registration Statement), in each case clear of all liens, mortgages, pledges,
charges, or encumbrances of any kind or nature except those, if any, reflected
in the financial statements described above (or elsewhere in the Registration
Statement) or which are not material to the Company and its Subsidiaries taken
as a whole; all properties held or used by the Company or a Subsidiary under
leases, licenses, franchises or other agreements are held by them under valid,
existing, binding, and enforceable leases, franchises, licenses, or other
agreements with respect to which it is not in default.
(j) Neither the Trust nor the Company or any Subsidiary has
taken or will take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, stabilization or manipulation, under the Exchange Act or otherwise,
of the price of the Preferred Securities.
(k) Except as reflected in or contemplated by the Registration
Statement, since the respective dates as of which information is given in the
Registration Statement and prior to the Closing Date and Option Closing Date (as
such terms are hereinafter defined):
(i) neither the Company nor any Subsidiary has
or will have incurred any material liabilities or obligations, direct or
contingent, or entered into any material transaction not in the ordinary course
of business without the prior consent of the Representatives;
(ii) neither the Company nor any Subsidiary has
or will have paid or declared any dividend or other distribution with respect to
its capital stock and
6
<PAGE>
neither the Company nor any Subsidiary has or will be delinquent in the payment
of principal or interest on any outstanding debt obligations; and
(iii) there has not been and will not be any
change in the capital stock or any material change in the indebtedness of the
Company or any Subsidiary (except as may result from the closing of the
transactions contemplated by this Agreement), or any adverse change in the
condition (financial or otherwise), or any development involving a prospective
adverse change in their respective businesses (resulting from litigation or
otherwise), prospects, properties, condition (financial or otherwise), net
worth, or results of operations which is material to the Company and its
Subsidiaries taken as a whole.
(l) There is no contract or other document, transaction, or
relationship required to be described in the Registration Statement, or to be
filed as an exhibit to the Registration Statement, by the Securities Act or by
the Securities Act Regulations that has not been described or filed as required.
(m) All documents delivered or to be delivered by the Offerors
or any of their representatives in connection with the issuance and sale of the
Preferred Securities were on the dates on which they were delivered, or will be
on the dates on which they are to be delivered, true, complete, and correct in
all material respects.
(n) The Company and each Subsidiary have filed all necessary
federal and all state and foreign income and franchise tax returns and paid all
taxes shown as due thereon; and no tax deficiency has been asserted or
threatened against the Company or any Subsidiary that would have a Material
Adverse Effect, except as described in the Prospectus.
(o) Neither the Trust nor the Company or any Subsidiary has,
directly or indirectly, at any time:
(i) made any unlawful contribution to any
candidate for political office, or failed to disclose any contribution in
violation of law; or
(ii) made any payment to any federal, state,
local, or foreign government officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted
by the laws of the United States or any jurisdiction thereof or applicable
foreign jurisdictions.
(p) The Company or a Subsidiary owns or possesses adequate
rights to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, servicemark registrations, copyrights, and
licenses necessary for the conduct of the business of the Company and the
Subsidiaries or ownership of their respective properties, and neither the
Company nor any Subsidiary has received notice of conflict with the asserted
rights of others in respect thereof which has not been resolved.
(q) The Company and each Subsidiary have in place and
effective such policies of insurance, with limits of liability in such amounts,
as are normal and prudent in the ordinary scope of business similar to that of
the Company and such Subsidiary in the respective jurisdiction in which they
conduct business.
7
<PAGE>
(r) The Company and each Subsidiary have and hold, and at the
Closing Date or Option Closing Date will have and hold, and are operating in
compliance with, and have fulfilled and performed all of their material
obligations with respect to, all permits, certificates, franchises, grants,
easements, consents, licenses, approvals, charters, registrations,
authorizations, and orders (collectively, "Permits") required under all laws,
rules, and regulations in connection with their respective businesses, and all
of such Permits are in full force and effect; and there is no pending
proceeding, and neither the Company nor any Subsidiary has received notice of
any threatened proceeding, relating to the revocation or modification of any
such Permits. Neither the Company nor any Subsidiary is (by virtue of any
action, omission to act, contract to which it is a party or by which it is
bound, or any occurrence or state of facts whatsoever) in violation of any
applicable federal, state, municipal, or local statutes, laws, ordinances,
rules, regulations and/or orders issued pursuant to foreign, federal, state,
municipal, or local statutes, laws, ordinances, rules, or regulations (including
those relating to any aspect of banking, bank holding companies, environmental
protection, occupational safety and health, and equal employment practices)
heretofore or currently in effect, except such violation that has been fully
cured or satisfied without recourse or that is not reasonably likely to have a
Material Adverse Effect.
(s) The provisions of any employee pension benefit plan
("Pension Plan") as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), in which the Company or any
Subsidiary is a participating employer are in substantial compliance with ERISA,
and neither the Company nor any Subsidiary is in violation of ERISA. The
Company, each Subsidiary, or the plan sponsor thereof, as the case may be, has
duly and timely filed the reports required to be filed by ERISA in connection
with the maintenance of any Pension Plans in which the Company or any Subsidiary
is a participating employer, and no facts, including any "reportable event" as
defined by ERISA and the regulations thereunder, exist in connection with any
Pension Plan in which the Company or any Subsidiary is a participating employer
which might constitute grounds for the termination of such plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate U.S.
District Court of a trustee to administer any such plan. The provisions of any
employee benefit welfare plan, as defined in Section 3(1) of ERISA, in which the
Company or any Subsidiary is a participating employer, are in substantial
compliance with ERISA, and the Company, any Subsidiary, or the plan sponsor
thereof, as the case may be, has duly and timely filed the reports required to
be filed by ERISA in connection with the maintenance of any such plans.
(t) Neither the Company nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate company
that is, or is required to be, registered under Section 8 of the Investment
Company Act of 1940, as amended, or subject to regulation under such Act.
(u) Exchange National Bank, Provident Bank, f.s.b., Farmers
National Bank, Peoples National Bank, Citizens State Bank and Trust Company,
First National Bank in Alma, Farmers State Bank, The First State Bank and Trust
Company, Peoples State Bank, The Trust Company, and Citizens Bank of Tulsa, hold
deposits that are insured by the Federal Deposit Insurance Corporation ("FDIC")
up to the legal limits.
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Each of Exchange National Bank, Farmers National Bank, Peoples National Bank,
First National Bank in Alma and Citizens Bank of Tulsa are members in good
standing of the Federal Reserve System.
(v) Neither this Agreement nor any certificate, statement or
other document delivered or to be delivered by the Offerors or any Subsidiary
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
Any certificate signed by any director or officer of the Company or the
Trust, as the case may be, and delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty of the
Company or the Trust, as the case may be, to the Underwriters as to the matters
covered thereby.
Any certificate delivered by the Company or the Trust, as the case may
be, to their respective counsel for purposes of enabling such counsel to render
an opinion pursuant to Section 8 will also be furnished to the Representatives
and counsel for the Underwriters and shall be deemed to be additional
representations and warranties to the Underwriters by the Company and the Trust
as to the matters covered thereby.
3. Purchase Sale and Delivery to Underwriters; Closing. On the basis of
the representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Trust and the Company, as the case may be,
agree that the Trust will issue and sell to the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I at a purchase price of $__ per Firm Security.
Payment of the purchase price for, and delivery of, the Firm Securities
shall be made at the offices of Arnold & Porter, 555 Twelfth Street, N.W.,
Washington, D.C., or at such other place as shall be agreed upon by the
Representatives, the Trust and the Company, at 9:00 A.M. Eastern Standard Time,
on the fourth business day (unless postponed in accordance with the provisions
of Section 14) following the date of this Agreement, or such other time not
later than ten (10) business days after such date as shall be agreed upon by the
Representatives, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
As compensation (the "Underwriting Commission") for the commitments of
the Underwriters contained in this Section 3, the Company hereby agrees to pay
to the Underwriters an amount equal to ___% of the public offering price of the
Preferred Securities. Such payment will be made on the Closing Date with respect
to the Firm Securities and on the Option Closing Date (as defined below) with
respect to the Option Securities.
Payment for the Firm Securities shall be made to the Trust by wire
transfer of immediately available funds, against delivery to the Underwriters of
the Firm Securities to be purchased by them. The Firm Securities shall be issued
in the form of one or more fully registered global securities (the "Global
Securities") in book-entry form in such denominations and registered in the name
of the nominee of The Depository Trust Company (the "DTC") or in such names as
the Representatives may request in writing at
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least two business days before the Closing Date. The Global Securities
representing the Firm Securities shall be made available for examination by the
Representatives and counsel to the Underwriters not later than 9:30 A.M. Eastern
Standard Time on the last business day prior to the Closing Date.
In addition, on the basis of the representations, warranties, and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Trust hereby grants to the Underwriters an option to purchase,
severally and not jointly, from the Trust the Option Securities in the same
proportion as the number of Preferred Securities set forth opposite their names
on Schedule I bears to the total number of Firm Securities, at the same purchase
price per Preferred Security to be paid for the Firm Securities, for use solely
in covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Securities. The option granted hereunder may be
exercised at any time (but not more than once) within thirty (30) days after the
date of this Agreement, upon notice by the Representatives to the Trust which
sets forth the aggregate liquidation amount of Option Securities as to which the
Underwriters are exercising the option, and the time and place at which the
certificate representing the Option Securities will be delivered. Such time of
delivery may not be earlier than the Closing Date and herein is called the
"Option Closing Date." The Option Closing Date shall be determined by the
Representatives, but if at any time other than the Closing Date, shall not be
earlier than three nor later than five full business days after delivery of such
notice to exercise. Certificates for the Option Securities will be made
available for inspection at least 24 hours prior to the Option Closing Date at
the offices of the DTC, or its designated custodian, or at such other location
as specified by the Representatives. The manner of payment for a delivery of the
Option Securities shall be the same as for the Firm Securities as specified in
this Section 3.
4. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the Underwriters, represent and warrant to the
Company that the information set forth [(a) in the last paragraph of the front
cover page of the Prospectus, (b) on page 4 of the Prospectus relating to
stabilization, and (c) in the third and fifth paragraphs of the section in the
Prospectus entitled "Underwriting"] was the only written information furnished
to the Company by and on behalf of any Underwriter expressly for use in
connection with the preparation of the Registration Statement, and is correct
and complete in all material respects and does not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
5. Offering by the Underwriters. The Trust and the Company are advised
by the Representatives that the Underwriters propose to make a public offering
of the Preferred Securities, on the terms and conditions set forth in the
Registration Statement from time to time as and when the Underwriters deem
advisable after the Registration Statement becomes effective. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
6. Agreements of the Offerors. Each of the Offerors covenants and
agrees with the Underwriter that:
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(a) If any information shall have been omitted from the
Registration Statement in reliance upon Rule 430A, the Company, at the earliest
possible time, will furnish the Representatives with copies of the Prospectus to
be filed by the Offerors with the Commission to comply with Rule 424(b) and Rule
430A under the Securities Act, and will file such Prospectus with the Commission
in compliance with such Rules. Upon compliance with such Rules, the Company will
so advise the Representatives promptly. The Company will advise the
Representatives and counsel to the Underwriters promptly of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the institution of any proceedings for that purpose, or of any
notification received by the Company of the suspension of qualification of the
Preferred Securities for sale in any jurisdiction or the initiation or
threatening of any proceedings for that purpose, or of any notification received
by the Company of the suspension of qualification of the Preferred Securities
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose. The Company also will advise the Representatives and counsel
to the Underwriters promptly of any request of the Commission for amendment or
supplement of the Registration Statement, of any Preliminary Prospectus, or of
the Prospectus, or for additional information, and the Offerors will not file
any amendment or supplement to the Registration Statement (either before or
after it becomes effective), to any Preliminary Prospectus, or to the Prospectus
(including a prospectus filed pursuant to Rule 424(b)) if the Representatives
have not been furnished with copies prior to such filing or if the
Representatives reasonably object to such filing.
(b) For the period during which a Prospectus relating to the
Preferred Securities is required to be delivered under the Securities Act, the
Offerors shall comply with all requirements imposed on them by the Securities
Act, as now and hereafter amended, and by the Securities Act Regulations, as
from time to time in force, so far as is necessary to permit the continuance of
sales or dealings in the Preferred Securities as contemplated by the provisions
hereof and the Prospectus. If any event occurs as a result of which the
Prospectus, including any subsequent amendment or supplement, would include an
untrue statement of a material fact, or would omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
it becomes necessary at any time to amend the Prospectus, including any
amendment or supplement thereto, to comply with the Securities Act, the Company
promptly will advise the Representatives and counsel to the Underwriters thereof
and the Offerors will promptly prepare and file with the Commission an amendment
or supplement that will correct such statement or omission or an amendment that
will effect such compliance; and, if any Underwriter is required to deliver a
prospectus nine (9) months or more after the effective date of the Registration
Statement, the Company, upon request of the Representatives but at the expense
of such Underwriter, will prepare promptly such prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section 10(a)(3)
of the Securities Act.
(c) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first,
without the prior consent of the Representatives, incur any material liability
or obligation, direct or contingent, or enter into any material transaction,
other than in the ordinary course of
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<PAGE>
business, or any transaction with a related party which is required to be
disclosed in the Prospectus pursuant to Item 404 of Regulation S-K under the
Securities Act, except as contemplated by the Prospectus.
(d) The Company will make generally available to its security
holders and the Representatives an earnings statement of the Company as soon as
practicable, but in no event later than fifteen (15) months after the end of the
Company's current fiscal quarter, covering a period of twelve (12) consecutive
calendar months beginning after the effective date of the Registration
Statement, but beginning not later than four (4) months after such effective
date, which will satisfy the provisions of the last subsection of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder.
(e) During such period as a prospectus is required by law to
be delivered in connection with sales by an underwriter or dealer, the Company
will furnish to the Representatives, at the expense of the Company, copies of
the Registration Statement, the Prospectus, any Preliminary Prospectus, and all
amendments and supplements to any such documents, in each case as soon as
available and in such quantities as the Representatives may reasonably request,
for the purposes contemplated by the Securities Act.
(f) The Offerors will use their best efforts to take or cause
to be taken in cooperation with the Representatives and counsel to the
Underwriters all actions required in qualifying or registering the Preferred
Securities for sale under the Blue Sky Laws of such jurisdictions as the
Representatives may reasonably designate, provided the Offerors shall not be
required to qualify generally as foreign corporations or as a dealer in
securities or to consent generally to the service of process under the law of
any such state (except with respect to the offering and sale of the Preferred
Securities), and will continue such qualifications or registrations in effect so
long as reasonably requested by the Representatives to effect the distribution
of the Preferred Securities (including, without limitation, compliance with all
undertakings given pursuant to such qualifications or registrations). In each
jurisdiction where any of the Preferred Securities shall have been qualified as
provided above, the Offerors will file such reports and statements as may be
required to continue such qualification for a period of not less than one (1)
year from the date of this Agreement.
(g) The Company will furnish to its security holders annual
reports containing financial statements audited by independent public
accountants. During the period ending three (3) years after the date of this
Agreement, (i) as soon as practicable after the end of the fiscal year, the
Company will furnish to each of the Representatives two copies of the annual
report of the Company containing the audited consolidated balance sheet of the
Company as of the close of such fiscal year and corresponding audited
consolidated statements of earnings, stockholders' equity and cash flows for the
year then ended, and (ii) the Company will file promptly and will furnish to
each of the Representatives at or before the filing thereof copies of all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13, 14, or 15 of the
Exchange Act. During such three-year period the Company also will furnish to the
Representatives one copy of the following:
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(i) as soon as practicable after the filing
thereof, each other report, statement, or other document filed by the Company
with the Commission;
(ii) as soon as practicable after the filing
thereof, all reports, statements, other documents and financial statements
furnished by the Company to Nasdaq pursuant to requirements of or agreements
with Nasdaq; and
(iii) as soon as available, each report,
statement, or other document of the Company mailed to its stockholders.
(h) The Offerors will use their best efforts to satisfy or
cause to be satisfied the conditions to the obligations of the Underwriters in
Section 8 hereof.
(i) The Offerors shall deliver the requisite notice of
issuance to the NASD and shall take all necessary or appropriate action within
its power to maintain the authorization for trading of the Preferred Securities
on the Nasdaq Stock Market for a period of at least thirty-six (36) months after
the date of this Agreement.
(j) The Trust shall comply in all respects with the
undertakings given by the Trust in connection with the qualification or
registration of the Preferred Securities for offering and sale under the Blue
Sky Laws.
(k) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the sale by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Subordinated Debentures. All the proceeds to be received by the
Company from the sale of the Subordinated Debentures will be used in the manner
and for the purposes specified under the heading "Use of Proceeds" in the
Prospectus. The Offerors shall file, and will furnish or cause to be furnished
to the Underwriter and counsel to the Underwriters copies of all reports as may
be required in accordance with Rule 463 under the Securities Act.
(l) Except for the sale of Preferred Securities pursuant to
this Agreement, neither the Company nor any Subsidiary shall, directly or
indirectly, offer, sell, contract to sell, issue, distribute, grant any option,
right, or warrant to purchase or otherwise dispose of any shares of the
Preferred Securities or substantially similar securities, in the open market or
otherwise, for a period of one hundred eighty (180) days after the later of the
effective date of the Registration Statement or the date of this Agreement,
without the express prior written consent of the Representatives.
7. Payment of Expenses and Fees
(a) Whether or not the transactions contemplated hereunder are
consummated, or if this Agreement is terminated for any reason, the Company will
pay or cause to be paid the costs, fees, and expenses incurred in connection
with the offering of the Preferred Securities as follows:
(i) All costs, fees, and expenses incurred in
connection with the performance of the obligations of the Company and the Trust
hereunder, including all fees and expenses of the Company and the Trust's
accountants and counsel, all costs and expenses incurred in connection with the
preparation, printing, filing, and distribution (including delivery and shipping
costs) of the Registration Statement, each Preliminary Prospectus, and the
Prospectus (including all amendments and exhibits thereto and the
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<PAGE>
financial statements therein), and agreements and supplements provided for
herein, this Agreement and other underwriting documents, including various
Underwriters' letters, and the Preliminary and Supplemental Blue Sky Memoranda;
(ii) All filing and registration fees and
expenses, including the legal fees and disbursements of counsel, incurred in
connection with qualifying or registering all or any part of the Preferred
Securities, the Guarantee and the Subordinated Debentures for offer and sale
under the Blue Sky Laws;
(iii) All fees and expenses of the Offerors'
registrar and transfer agent; all transfer taxes, if any, and all other fees and
expenses incurred in connection with the sale and delivery of the Preferred
Securities to the Underwriters;
(iv) The filing fees of the NASD and applicable
fees charged by Nasdaq for inclusion of the Preferred Securities for quotation
on the National Market System; and
(v) All other costs and expenses incident to
the performance of the Company's and the Trust's obligations hereunder which
are not otherwise provided for in this Section 7(a).
(b) On the consummation of the offering of the Firm
Securities, the Company shall pay Advest, Inc. twenty-five thousand dollars and
00/100 ($25,000) as a financial advisory fee.
8. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters under this Agreement shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Trust set
forth herein as of the Closing Date, and if applicable, as of the Option Closing
Date, as the case may be, to the accuracy of the statements of the Offerors'
directors and officers, to the performance by the Company and the Trust of their
obligations hereunder, and to the following additional conditions, except to the
extent expressly waived in writing by the Representatives:
(a) The Registration Statement and all post-effective
amendments thereto shall have been declared effective by the Commission no later
than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time
as shall have been consented to by the Representatives, but in any event not
later than 5:30 p.m., Eastern Time, on the third full business day following the
date hereof; if the Offerors omitted information from the Registration Statement
at the time it became effective in reliance on Rule 430A under the Securities
Act, the Prospectus shall have been filed with the Commission in compliance with
Rule 424(b) and Rule 430A under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued; no proceeding for the issuance of such an order
shall have been initiated or shall be pending or, to the knowledge of the
Offerors or the Representatives, threatened or contemplated by the Commission;
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
disclosed to the Representatives and complied with to the Representatives'
satisfaction.
(b) The Preferred Securities, the Guarantee and the
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available
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<PAGE>
exemption from such qualification or registration, under the Blue Sky Laws of
such jurisdictions as shall have been reasonably specified by the
Representatives and the offering contemplated by this Agreement shall have been
cleared by the NASD.
(c) Since the dates as of which information is given in the
Registration Statement:
(i) There shall not have been any material
adverse change, or any development involving a prospective material adverse
change, in the ability of the Company or any Subsidiary to conduct their
respective businesses (whether by reason of any court, legislative, other
governmental action, order, decree, or otherwise), or in the general affairs,
condition (financial and otherwise), business, prospects, properties,
management, financial position or earnings, results of operations, or net worth
of the Company or any Subsidiary, whether or not arising from transactions in
the ordinary course of business; and
(ii) Neither the Company nor any Subsidiary
shall have sustained any loss or interference from any labor dispute, strike,
fire, flood, windstorm, accident, or other calamity (whether or not insured) or
from any court or governmental action, order, or decree; the effect of which on
the Company or any Subsidiary, in any such case described in clause (c)(i) or
(ii) above, is in the reasonable opinion of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Preferred Securities on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representatives on
the Closing Date and the Option Closing Date, except as otherwise expressly
provided below:
(i) An opinion of Blackwell Sanders Peper
Martin LLP, counsel to the Company, dated as of the Closing Date and any
Option Closing Date, in form and substance substantially in the form attached
hereto as Exhibit A;
(ii) The favorable opinion, dated the Closing
Date and the Option Closing Date, of White & Case, counsel to the Trust Company
and Trust Delaware, substantially in the form attached hereto as Exhibit B;
(iii) The favorable opinion, dated the Closing
Date and the Option Closing Date, of Richards, Layton & Finger, special Delaware
counsel to the Company and the Trust, substantially to the effect and in the
form attached hereto as Exhibit C;
(iv) The favorable opinion, dated the Closing
Date and the Option Closing Date, of Richards, Layton & Finger, special Delaware
counsel to Trust Delaware, substantially to the effect and in the form attached
hereto as Exhibit D; and
(v) The favorable opinion, dated the Closing
Date and the Option Closing Date, of Arnold & Porter, counsel to the
Underwriters, as to such matters as the Representatives shall reasonably
request.
In rendering such opinions specified in clause (d)(ii), (iii), (iv) or
(v) above, counsel may rely upon an opinion or opinions, each dated the Closing
Date or the Option
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Closing Date as the case may be, of other counsel retained by them or the
Company as to laws of any jurisdiction other than the United States or the State
of New York, provided that (A) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered to the
Representatives, and (B) counsel shall state in their opinion that they believe
that they and the Underwriters are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Company, its
Subsidiaries and the Trust and certificates of public officials.
(e) At the time this Agreement is executed and also on the
Closing Date and the Option Closing Date, as the case may be, there shall be
delivered to the Representatives a letter from KPMG LLP, the Company's
independent accountants, the first letter to be dated the date of this
Agreement, the second letter to be dated the Closing Date, and the third letter
to be dated the Option Closing Date, if any, which shall be in form and
substance reasonably satisfactory to the Representatives and shall contain
information as of a date within five days of the date of such letter. There
shall not have been any change set forth in any letter referred to in this
subsection (e) that makes it impracticable or inadvisable in the judgment of the
Representatives to proceed with the public offering or purchase of the Preferred
Securities as contemplated hereby.
(f) On the Closing Date and on the Option Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date or the
Option Closing Date, as the case may be, to the effect that the signers of such
certificate have carefully examined the Registration Statement and this
Agreement and that:
(i) The representations and warranties of the
Offerors in this Agreement are true and correct in all material respects on and
as of the Closing Date or the Option Closing Date, as the case may be, with the
same effect as if made on the Closing Date or the Option Closing Date, as the
case may be, and the Offerors have complied in all material respects with all
the agreements and satisfied in all material respects all the conditions on its
part to be performed or satisfied at or prior to the Closing Date or the Option
Closing Date, as the case may be;
(ii) The Commission has not issued an order
preventing or suspending the use of the Prospectus or any Preliminary Prospectus
or any amendment thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the knowledge of the respective
signatories, no proceeding for that purpose has been instituted or is pending or
contemplated under the Securities Act;
(iii) Each of the respective signatories of the
certificate has carefully examined the Registration Statement, the Prospectus,
and any amendments or supplements thereto, and such documents contain all
material statements and information required to be made therein, and neither the
Registration Statement nor any amendment or supplement thereto includes any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
and, since the date on which the Registration Statement was initially filed, no
event has occurred that was required to be set forth in an amended or
supplemented
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<PAGE>
prospectus or in an amendment to the Registration Statement that has not been so
set forth; provided, however, that no representation need be made as to
information contained in or omitted from the Registration Statement or any
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on behalf of any
Underwriter through the Representatives; and
(iv) Since the date on which the Registration
Statement was initially filed with the Commission, there has not been any
material adverse change or a development involving a prospective material
adverse change in the business, properties, financial condition, or earnings of
the Company and its Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as disclosed in the
Registration Statement as heretofore amended or (but only if the Representatives
expressly consent thereto in writing) as disclosed in an amendment or supplement
thereto filed with the Commission and delivered to the Representatives after the
execution of this Agreement; since such date and except as so disclosed or in
the ordinary course of business, neither the Company nor any Subsidiary has
incurred any liability or obligation, direct or indirect, or entered into any
transaction that is material to the Company or such Subsidiary, as the case may
be, not contemplated in the Prospectus; since such date and except as so
disclosed there has not been any change in the outstanding capital stock of the
Company, or any change that is material to the Company and its Subsidiaries
taken as a whole in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the Company nor
any of its Subsidiaries have incurred any material contingent obligations, and
no material litigation is pending or, to their knowledge, threatened against the
Company or any Subsidiary; and, since such date and except as so disclosed,
neither the Company nor any of its Subsidiaries have sustained any material loss
or interference from any strike, fire, flood, windstorm, accident or other
calamity (whether or not insured) or from any court or governmental action,
order, or decree.
(g) Prior to the Closing Date and any Option Closing Date, the
Company shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request in
connection with the offering of the Preferred Securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice from the Representatives to the Company at any
time without liability on the part of any Underwriters, including the
Representatives, or the Company, except for expenses to be paid by the Company
pursuant to Section 7 hereof or reimbursed by the Company pursuant to Section 9
and except to the extent provided in Section 11.
9. Reimbursement of Underwriters' Expenses. If the sale of the
Preferred Securities to the Underwriters on the Closing Date is not consummated
because the offering is terminated or indefinitely suspended by the Company or
by the Representatives for any reason permitted by this Agreement, other than
the Underwriters' inability to legally act as Underwriter, the Company will
reimburse the Underwriters for the Underwriters' reasonable out-of-pocket
expenses, including fees and disbursements of its counsel, that shall have been
incurred by the Underwriters in connection with the proposed purchase and sale
of the Preferred Securities. Any such termination or
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suspension shall be without liability of any party to the other except that the
provisions of this Section 9, and Sections 7 and 11 shall remain effective and
shall apply.
10. Maintain Effectiveness of Registration Statement. The
Representatives and the Company will use their respective best efforts to
prevent the issuance of any stop order or other such order suspending the
effectiveness of the Registration Statement and, if such stop order is issued,
to obtain the lifting thereof as soon as possible.
11. Indemnification and Contribution.
(a) The Offerors agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, expenses, liabilities, or actions in respect thereof ("Claims"), joint
or several, to which such Underwriter or each such controlling person may become
subject under the Securities Act, the Exchange Act, the Securities Act
Regulations, Blue Sky Laws or other federal or state statutory laws or
regulations, at common law or otherwise (including payments made in settlement
of any litigation, if such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld), insofar as such
Claims arise out of or are based upon the inaccuracy or breach of any
representation, warranty, or covenant of the Company or the Trust contained in
this Agreement, any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any application filed
under any Blue Sky Law or other document executed by the Offerors for that
purpose or based upon written information furnished by the Offerors and filed in
any state or other jurisdiction to qualify or register any or all of the
Preferred Securities under the securities laws thereof (any such document,
application, or information being hereinafter called a "Blue Sky Application"),
or arise out of or are based upon the omission or alleged omission to state in
any of the foregoing a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Company agrees to reimburse
each Underwriter and each such controlling person promptly for any legal fees or
other expenses incurred by such Underwriter or any such controlling person in
connection with investigating or defending any such Claim or appearing as a
third-party witness in connection with any such Claim; provided, however, that
the Company will not be liable in any such case to the extent that:
(i) Any such Claim arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished by or on behalf of the Underwriters to the Offerors expressly for use
therein pursuant to Section 4 of this Agreement; or
(ii) Such statement or omission was contained or
made in any Preliminary Prospectus and corrected in the Prospectus and (1) any
such Claim suffered or incurred by any Underwriter (or any person who controls
such Underwriter) resulted from an action, claim, or suit by any person who
purchased Preferred Securities that are the subject thereof from such
Underwriter in the offering of the Preferred Securities, and
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<PAGE>
(2) such Underwriter failed to deliver a copy of the Prospectus (as then amended
if the Offerors shall have amended the Prospectus) to such person at or prior to
the confirmation of the sale of such Preferred Securities in any case where such
delivery is required by the Securities Act, unless such failure was due to
failure by the Company and the Trust to provide copies of the Prospectus (as so
amended) to the Underwriter as required by this Agreement.
(b) Each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Offerors, each of their directors, each of their
officers who sign the Registration Statement, and each person who controls the
Company or the Trust within the meaning of the Securities Act, against any Claim
to which the Offerors, or any such director, officer, or controlling person may
become subject under the Securities Act, the Exchange Act, the Securities Act
Regulations, Blue Sky Laws, or other federal or state statutory laws or
regulations, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter and the Representatives, which consent shall not be unreasonably
withheld), insofar as such Claim arises out of or is based upon any untrue or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky Application, or arises out of or is based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application, in reliance
upon and in conformity with the written information furnished by or on behalf of
such Underwriter to the Offerors pursuant to Section 4 of this Agreement. Each
Underwriter will severally reimburse any legal fees or other expenses reasonably
incurred by the Offerors, or any such director, officer, or controlling person
in connection with investigating or defending any such Claim, and from any and
all Claims resulting from failure of such Underwriter to deliver a copy of the
Prospectus, if the person asserting such Claim purchased Preferred Securities
from such Underwriter and a copy of the Prospectus (as then amended if the
Offerors shall have amended the Prospectus) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Preferred
Securities to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim (unless such failure was due to a
failure by the Company and the Trust to provide sufficient copies of the
Prospectuses (as so amended) to each Underwriter).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of this Section 11 of notice of the commencement of any
action in respect of a Claim, such indemnified party will, if a Claim in respect
thereof is to be made against an indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof. In case
any such action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent that it
may wish, jointly with all other indemnifying parties, similarly notified,
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided,
19
<PAGE>
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to the indemnified party
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties 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 or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under subsection (a) or (b) of this Section 11 for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed
separate counsel in connection with the assumption of legal defenses in
accordance with the proviso to the last sentence of subsection (c) of this
Section 11 (it being understood, however, that the indemnified party shall not
be liable for the legal fees and expenses of more than one separate counsel
(plus local counsel), approved by the Representatives if one or more of the
Underwriters or their controlling persons are the indemnified parties); or
(ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after the indemnified party's
notice to the indemnifying party of commencement of the action;
(e) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party or insufficient to hold harmless an
indemnified party under subsection (a) or (b) of this Section 11 in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand from the offering of the Preferred Securities; or
(ii) if the allocation provided by clause
(e)(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
(e)(i) above, but also the relative fault of the Offerors on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such Claim, as well as any other relevant equitable
considerations.
The respective relative benefits received by the Offerors on the one hand and
the Underwriters on the other hand shall be deemed to be in such proportion that
the Underwriters are responsible for that portion of a Claim represented by the
percentage that the amount of the Underwriting Commission bears to the public
offering price of the
20
<PAGE>
Preferred Securities, and the Company (including the Company's directors,
officers, and controlling persons) is responsible for the remaining portion of
such Claim.
The relative fault of the Offerors on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Offerors on the one hand or the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such untrue statement or omission. The amount paid or payable by a party
as a result of the Claims referred to above shall be deemed to include, subject
to the limitations set forth in subsections (c) and (d) of this Section 11, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
(f) The Offerors and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 11 were
determined by pro rata or per capita allocation or by any other method or
allocation that does not take into account the equitable considerations referred
to in subsection (e) of this Section 11. Notwithstanding the other provisions of
this Section 11, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Preferred Securities
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation to contribute
pursuant to this Section 11 are several in proportion to their respective
underwriting commitments and not joint.
(g) The obligations of the Company, the Trust and the
Underwriters under this Section 11 shall be in addition to any liability that
the Company, the Trust or the Underwriters may otherwise have.
12. Default of Underwriters. It shall be a condition to this Agreement
and to the obligations of the Trust to sell and deliver the Preferred Securities
hereunder, and to the obligations of each Underwriter to purchase the Preferred
Securities in the manner described herein, that, except as hereinafter provided
in this Section 12, each of the Underwriters (except a defaulting Underwriter)
shall purchase and pay for all the Preferred Securities agreed to be purchased
by such Underwriter hereunder upon tender to the Representatives of all such
Preferred Securities in accordance with the terms hereof. If any Underwriter or
Underwriters default in its or their obligations to purchase Preferred
Securities hereunder on either the Closing Date or the Option Closing Date and
the aggregate number of Preferred Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the liquidation amount of Preferred Securities the Underwriters are obligated to
purchase on such Closing Date, the Representatives may make arrangements for the
purchase of such Preferred Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date or
Option Closing Date the nondefaulting Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the
Preferred Securities such defaulting Underwriters agreed but
21
<PAGE>
failed to purchase on such Closing Date or Option Closing Date. If any
Underwriter or Underwriters so default and the liquidation amount of Preferred
Securities with respect to which such default or defaults occur is greater than
the above percentage and arrangements satisfactory to the Representatives for
the purchase of such Preferred Securities by other person are not made within
thirty-six (36) hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except to
the extent provided in Section 11.
If Preferred Securities to which a default relates are to be purchased
by the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the Closing Date
or Option Closing Date, as the case may be, for not more than seven (7) business
days in order that the necessary changes, if any, in the Registration Statement,
Prospectus, and any other documents, as well as any other arrangements, may be
effected. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 12. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
13. Effective Date. This Agreement shall become effective immediately
on the date hereof.
14. Termination. Without limiting the right to terminate this Agreement
pursuant to any other provision hereof, this Agreement may be terminated by the
Representatives prior to the Closing Date and the option from the Company and
the Trust referred to in Section 3, if exercised, may be canceled by the
Representatives at any time prior to the Option Closing Date, if:
(a) The Offerors shall have failed, refused, or been unable,
at or prior to the Closing Date or Option Closing Date, as the case may be, to
perform any agreement on its part to be performed hereunder;
(b) Any other condition to the obligations of the Underwriters
hereunder is not fulfilled; or
(c) In the Representatives' reasonable judgment, payment for
and delivery of the Preferred Securities is rendered impracticable or
inadvisable because:
(i) Additional governmental restrictions, not
in force and effect on the date hereof, shall have been imposed upon trading
in securities generally or minimum or maximum prices shall have been generally
established on any national securities exchange or over-the-counter market, or
trading in securities generally shall have suspended on any national securities
exchange or on the Nasdaq Stock Market, or a general banking moratorium shall
have been established by federal or state authorities;
(ii) Any event shall have occurred or shall exist
that makes untrue or incorrect in any material respect any statement or
information contained in the Registration Statement or that is not reflected in
the Registration Statement but should be reflected therein to make the
statements or information contained therein not misleading in any material
respect; or
(iii) Any outbreak or escalation of major
hostilities or other national or international calamity or any substantial
change in political, financial or economic conditions shall have occurred or
shall have accelerated to such extent, in the
22
<PAGE>
Representatives' reasonable judgment, as to have a material adverse effect on
the general securities market or make it impracticable or inadvisable to proceed
with completion of the sale and payment for the Preferred Securities as provided
in this Agreement.
Any termination pursuant to this Section 14 shall be without liability
on the part of any Underwriter to the Company or on the part of the Company to
any Underwriter (except for expenses to be paid by the Company pursuant to
Section 7 or reimbursed by the Company pursuant to Section 9 and except as to
indemnification and contribution to the extent provided in Section 11).
15. Representations and Indemnities to Survive Delivery. The respective
indemnity and contribution agreements of the Company and the Underwriters, and
the representations, warranties, covenants, other statements of the Offerors and
of their directors and officers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of any Underwriter, the Offerors, or any of its or their partners,
officers, directors, or any controlling person, as the case may be, and will
survive delivery of and payment for the Preferred Securities sold hereunder. The
respective indemnity and contribution agreements of the Company and the
Underwriters, the provisions of Section 7(a) and Section 9 of this Agreement,
and the representations and warranties of the Offerors will survive the
termination or cancellation of this Agreement.
16. Notices. All communications hereunder shall be in writing and, if
sent to the Representatives, will be mailed, delivered, or telecopied (with
receipt confirmed) to The Representatives, c/o Advest, Inc., at One Rockefeller
Plaza, 20th Floor, New York, New York 10020, Attention: Thomas G. Rudkin,
Managing Director (Fax No. (212) 584-4292) with a copy to Steven Kaplan, Arnold
& Porter, 555 Twelfth Street, N.W., Washington, D.C. 20004, (Fax No. (202)
942-5999); and if sent to the Company or the Trust will be mailed, delivered, or
telecopied (with receipt confirmed) to Gold Banc Corporation, Inc., 11301 Nall
Avenue, Leawood, Kansas 66211, Attention: Keith E. Bouchey, Executive Vice
President and Chief Financial Officer (Fax No. (913) 451-8004) with a copy to
Steven F. Carman, Blackwell Sanders Peper Martin LLP, Two Pershing Square, 2300
Main Street, Suite 1000, Kansas City 64108 (Fax No. (816) 983-8080).
17. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors or assigns, and
to the benefit of the directors and officers (and their personal
representatives) and controlling persons referred to in Section 11, and no other
person shall acquire or have any right or obligation hereunder. The terms
"successors or assigns," as used in this Agreement, shall not include any
purchaser of the Preferred Securities from any Underwriter merely by reason of
such purchase.
18. Partial Unenforceability. If any section, subsection, clause, or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause, or provision hereof.
19. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
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<PAGE>
20. Entire Agreement. This Agreement embodies the entire agreement
among the parties hereto with respect to the transactions contemplated herein,
and there have been and are no agreements among the parties with respect to such
transactions other than as set forth or provided for herein.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
24
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed counterparts hereof,
whereupon it will become a binding agreement among the Company, the Trust and
the Underwriters, including the Representatives, in accordance with its terms.
Very truly yours,
GOLD BANC CORPORATION, INC.
By:
------------------------------
Title:
---------------------------
GBCI CAPITAL TRUST II
By: GOLD BANC CORPORATION, INC.
as Depositor
By:
------------------------------
Title:
---------------------------
ADVEST, INC.
As representative of the
several Underwriters listed
in Schedule I.
By:
------------------------------
Title:
---------------------------
U.S. BANCORP PIPER JAFFRAY INC.
As representative of the
several Underwriters listed
in Schedule I.
By:
------------------------------
Title:
---------------------------
25
<PAGE>
GBCI CAPITAL TRUST II
GOLD BANC CORPORATION, INC.
SCHEDULE I
Liquidation Amount of
Firm Securities to be
Name of Underwriter Purchased
- -------------------
Advest, Inc. ..............................................$__________
U.S. Bancorp Piper Jaffray Inc. ...........................$__________
Aggregate Liquidation Amount...............................$__________
<PAGE>
EXHIBIT A
The opinion of special counsel to the Company to be delivered pursuant to
Section 8(d)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation existing and in good standing under the
laws of the State of Kansas, with requisite corporate power and authority to own
its properties and conduct its business as described in the Registration
Statement, except for such power and authority the absence of which would not
have a material adverse effect on the Company, and is registered as bank holding
company under the Bank Holding Company Act of 1956, as amended.
2. Each Subsidiary of the Company has been duly incorporated or
organized and is validly existing as a corporation or banking association in
good standing under the laws of the jurisdiction of organization, with full
corporate power and authority to own, lease, and operate its properties and
conduct its business as described in the Registration Statement; the Company and
each Subsidiary are qualified to do business as foreign corporations under the
corporation laws of each jurisdiction in which the Company or such Subsidiary,
as the case may be, owns or leases properties, has an office, or in which
business is conducted and such qualification is required, except where the
failure to so qualify would not have a material adverse effect.
3. The Company has full corporate power and authority to execute,
deliver, and perform the Underwriting Agreement; the Underwriting Agreement has
been duly authorized, executed and delivered by the Company, and constitutes a
legal, valid, and binding obligation of the Company and is enforceable against
each of the Company and the Trust in accordance with its terms.
4. The Trust Agreement has been duly authorized, executed and delivered
by the Company, and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
5. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
6. The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
7. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Underwriting
Agreement, will be valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms.
8. The Trust is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in Investment Company Act
of 1940, as amended.
<PAGE>
9. The statements set forth in the Registration Statement under the
captions "Supervision and Regulation," "Description of Preferred Securities,"
"Description of Junior Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws referred to therein, fairly summarize the legal matters described therein.
10. The statements of law or legal conclusions and opinions set forth
in the Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
11. The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
12. The Registration Statement and the Prospectus and any amendment or
supplement thereto made by the Company prior to the Closing Date or any Option
Closing Date (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), when it or they
became effective or were filed with the Commission, as the case may be, and in
each case at the Closing Date or any Option Closing Date, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations under said acts, and such
counsel has no reason to believe that: (i) the Registration Statement (other
than the financial statements and financial and statistical data included
therein, as to which no opinion need be rendered), at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained therein, not
misleading, or (2) the Prospectus (other than the financial statements and
financial and statistical data included therein, as to which no opinion need be
rendered), at the time it was filed with the Commission or at the Closing Date
or any Option Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading.
13. Such counsel knows of no material legal or governmental proceedings
pending to which the Company or any Subsidiary is a party or of which any
property of the Company or any Subsidiary is the subject which would affect the
consummation of the transactions contemplated in this Agreement, the Indenture
or the Preferred Securities; and such counsel knows of no such proceedings which
are threatened or contemplated by governmental authorities or threatened by
others.
14. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto, and
such instruments as are summarized in the Registration Statement are fairly
summarized in all material respects.
2
<PAGE>
15. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of this Agreement, the Trust Agreement, the Guarantee
Agreement, and the Indenture or the issuance and sale of the Preferred
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Trust Agreement, the Guarantee Agreement, or
the Indenture, except such as have been obtained under the Securities Act, the
Exchange Act and the Trust Indenture Act or such as may be required under the
blue sky or securities laws of various states in connection with the offering
and sale of the Preferred Securities (as to which such counsel need express no
opinion).
16. The execution and delivery of this Agreement, the Trust Agreement,
the Guarantee Agreement, and the Indenture, the issue and sale of the Preferred
Securities and the Subordinated Debentures, the compliance by the Company with
the provisions of the Preferred Securities, the Subordinated Debentures, the
Indenture and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or constitute a breach of, or
default under, the articles of incorporation or by-laws of the Company or a
breach or default under any contract, indenture, mortgage, loan agreement, note,
lease or other instrument known to such counsel to which either the Company or
any Subsidiary is a party or by which any of them or any of their respective
properties may be bound except for such breaches as would not have a material
adverse effect on the Company and its Subsidiaries considered as one enterprise,
nor will such action result in a violation on the part of the Company or any
Subsidiary of any applicable law or regulation or of any administrative,
regulatory or court decree known to such counsel.
3
<PAGE>
EXHIBIT B
The opinion of counsel to the Trust Company and Trust Delaware to be delivered
pursuant to Section 8(d)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in
good standing as a banking corporation with trust powers under the laws of the
State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly
executed and delivered by the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively, enforceable against
the Indenture Trustee and the Guarantee Trustee, respectively in accordance with
its respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and by the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
6. The Subordinated Debentures delivered on the date hereof have been
duly authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
<PAGE>
EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company and the Trust
to be delivered pursuant to Section 8(d)(iii) of the Underwriting Agreement
shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"), and all filings required under the
laws of the State of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement the Trust has the
trust power and authority to own its property and to its conduct its business,
all as described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of
the Company and the Property Trustee and the Delaware Trustee, and is
enforceable against the Company and the Property Trustee and the Delaware
Trustee, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the
trust power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations under
the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement. The
Holders, as beneficial owners of the Trust, will be entitled to the same
limitations 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 may be obligated pursuant to the Trust
Agreement, (i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of Preferred
Securities Certificates and the issuance of replacement Preferred Securities
Certificates, and (ii) to provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive rights.
<PAGE>
8. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
2
<PAGE>
EXHIBIT D
The opinion of counsel, as Special Delaware counsel to Trust Delaware to be
delivered pursuant to Section 8(d) (iv) of the Underwriting Agreement shall be
substantially to the effect that:
1. Trust Delaware is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware. The Delaware Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.
2. Trust Delaware has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
<PAGE>
Exhibit 4(a)
- --------------------------------------------------------------------------------
JUNIOR SUBORDINATED INDENTURE
Between
GOLD BANC CORPORATION, INC.
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
__________, 1999
- --------------------------------------------------------------------------------
<PAGE>
GBCI CAPITAL TRUST II
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Junior Subordinated
Act Section Indenture Section
- ---------------- -------------------
<S> <C> <C>
Section 310 (a)(1).................................................. 6.9
(a)(2).................................................. 6.9
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(a)(5).................................................. 6.9
(b)..................................................... 6.8, 6.10
Section 311 (a)..................................................... 6.13
(b)..................................................... 6.13
(b)(2).................................................. 7.3(a)
Section 312 (a)..................................................... 7.1, 7.2(a)
(b)..................................................... 7.2(b)
(c)..................................................... 7.2(c)
Section 313 (a)..................................................... 7.3(a)
(a)(4).................................................. 7.3(a)
(b)..................................................... 7.3(b)
(c)..................................................... 7.3(a)
(d)..................................................... 7.3(c)
Section 314 (a)..................................................... 7.4
(b)..................................................... 7.4
(c)(1).................................................. 1.2
(c)(2).................................................. 1.2
(c)(3).................................................. Not Applicable
(e)..................................................... 1.2
Section 315 (a)..................................................... 6.1(a)
(b)..................................................... 6.2, 7.3
(c)..................................................... 6.1(b)
(d)..................................................... 6.1(c)
(e)..................................................... 5.14
Section 316 (a)..................................................... 5.12
(a)(1)(A)............................................... 5.12
(a)(1)(B)............................................... 5.13
(a)(2).................................................. Not Applicable
(b)..................................................... 5.8
(c)..................................................... 1.4(f)
Section 317 (a)(1).................................................. 5.3
(a)(2).................................................. 5.4
(b)..................................................... 10.3
Section 318 (a)..................................................... 1.7
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions............................................................. 1
Section 1.2. Compliance Certificate and Opinions..................................... 11
Section 1.3. Forms of Documents Delivered to Trustee................................. 12
Section 1.4. Acts of Holders......................................................... 12
Section 1.5. Notices, Etc. to Trustee and Company.................................... 14
Section 1.6. Notice to Holders; Waiver............................................... 15
Section 1.7. Conflict with Trust Indenture Act....................................... 15
Section 1.8. Effect of Headings and Table of Contents................................ 15
Section 1.9. Successors and Assigns.................................................. 15
Section 1.10. Separability Clause..................................................... 15
Section 1.11. Benefits of Indenture................................................... 16
Section 1.12. Governing Law........................................................... 16
Section 1.13. Non-Business Days....................................................... 16
ARTICLE II. SECURITY FORMS
Section 2.1. Forms Generally......................................................... 16
Section 2.2. Form of Face of Security................................................ 17
Section 2.3. Form of Reverse of Security............................................. 21
Section 2.4. Additional Provisions Required in Global Security....................... 24
Section 2.5. Form of Trustee's Certificate of Authentication......................... 25
ARTICLE III. THE SECURITIES
Section 3.1. Title and Terms......................................................... 25
Section 3.2. Denominations........................................................... 26
Section 3.3. Execution, Authentication, Delivery and Dating.......................... 26
Section 3.4. Temporary Securities.................................................... 27
Section 3.5. Global Securities....................................................... 28
Section 3.6. Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges;
Securities Act Legends.................................................. 29
Section 3.7. Mutilated, Lost and Stolen Securities................................... 31
Section 3.8. Payment of Interest and Additional Interest;
Interest Rights Preserved............................................... 32
Section 3.9. Persons Deemed Owners................................................... 34
Section 3.10. Cancellation............................................................ 34
Section 3.11. Computation of Interest................................................. 34
Section 3.12. Deferrals of Interest Payment Dates..................................... 34
Section 3.13. Right of Set-Off........................................................ 35
Section 3.14. Agreed Tax Treatment.................................................... 36
Section 3.15. CUSIP Numbers........................................................... 36
</TABLE>
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Section 3.16. Shortening of Stated Maturity........................................... 36
ARTICLE IV. SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture................................. 37
Section 4.2. Application of Trust Money.............................................. 38
ARTICLE V. REMEDIES
Section 5.1. Events of Default....................................................... 38
Section 5.2. Acceleration of Maturity; Rescission and Annulment...................... 39
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee.............................................. 40
Section 5.4. Trustee May File Proofs of Claim........................................ 40
Section 5.5. Trustee May Enforce Claim Without
Possession of Securities................................................ 41
Section 5.6. Application of Money Collected.......................................... 42
Section 5.7. Limitation on Suits..................................................... 43
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders
of Preferred Securities................................................. 43
Section 5.9. Restoration of Rights and Remedies...................................... 43
Section 5.10. Rights and Remedies Cumulative.......................................... 43
Section 5.11. Delay or Omission Not Waiver............................................ 44
Section 5.12. Control by Holders...................................................... 43
Section 5.13. Waiver of Past Defaults................................................. 44
Section 5.14. Undertaking for Costs................................................... 45
Section 5.15. Waiver of Usury, Stay or Extension Laws................................. 45
ARTICLE VI. THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities..................................... 46
Section 6.2. Notice of Defaults...................................................... 47
Section 6.3. Certain Rights of Trustee............................................... 47
Section 6.4. Not Responsible for Recitals or Issuance of Securities.................. 48
Section 6.5. May Hold Securities..................................................... 48
Section 6.6. Money Held in Trust..................................................... 48
Section 6.7. Compensation and Reimbursements......................................... 49
Section 6.8. Disqualification; Conflicting Interests................................. 50
Section 6.9. Corporate Trustee Required;
Eligibility............................................................. 50
Section 6.10. Resignation and Removal; Appointment
of Successor............................................................ 52
Section 6.11. Acceptance of Appointment by
Successor............................................................... 51
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business.................................................. 52
Section 6.13. Preferential Collection of Claims Against
Company................................................................. 52
</TABLE>
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<S> <C> <C>
Section 6.14. Appointment of Authenticating Agent..................................... 53
ARTICLE VII. HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
Section 7.1. Company to Furnish Trustee Names and
Addresses of Holders.................................................... 54
Section 7.2. Preservation of Information,
Communications to Holders............................................... 54
Section 7.3. Reports by Trustee and Paying Agent..................................... 54
Section 7.4. Reports by Company...................................................... 55
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only
on Certain Terms........................................................ 56
Section 8.2. Successor Company Substituted........................................... 57
ARTICLE IX. SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent
of Holders.............................................................. 57
Section 9.2. Supplemental Indentures With Consent of
Holders................................................................. 58
Section 9.3. Execution of Supplemental Indentures.................................... 59
Section 9.4. Effect of Supplemental Indentures....................................... 59
Section 9.5. Conformity with Trust Indenture Act..................................... 60
Section 9.6. Reference in Securities to Supplemental
Indentures.............................................................. 60
ARTICLE X. COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.............................. 60
Section 10.2. Maintenance of Office or Agency......................................... 60
Section 10.3. Money for Security Payments to be Held in
Trust................................................................... 61
Section 10.4. Statement as to Compliance.............................................. 62
Section 10.5. Waiver of Certain Covenants............................................. 62
Section 10.6. Additional Sums......................................................... 63
Section 10.7. Additional Covenants.................................................... 63
Section 10.8. Federal Tax Reports..................................................... 64
ARTICLE XI. REDEMPTION OF SECURITIES
Section 11.1. Applicability of This Article........................................... 64
Section 11.2. Election to Redeem; Notice to Trustee................................... 65
Section 11.3. Selection of Securities to be Redeemed.................................. 65
Section 11.4. Notice of Redemption.................................................... 65
Section 11.5. Deposit of Redemption Price............................................. 66
Section 11.6. Payment of Securities Called for Redemption............................. 66
</TABLE>
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Section 11.7. Right of Redemption of Securities
Initially Issued to the Issuer Trust.................................... 67
ARTICLE XII. SINKING FUNDS
Sinking Funds........................................................... 67
ARTICLE XIII. SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior Indebtedness........................... 67
Section 13.2. No Payment When Senior Indebtedness
in Default; Payment Over of Proceeds
Upon Dissolution, Etc................................................... 68
Section 13.3 Payment Permitted If No Default......................................... 69
Section 13.4. Subrogation to Rights of Holders of
Senior Indebtedness..................................................... 69
Section 13.5. Provisions Solely to Define Relative Rights............................. 70
Section 13.6. Trustee to Effectuate Subordination..................................... 70
Section 13.7. No Waiver of Subordination Provisions................................... 71
Section 13.8. Notice to Trustee....................................................... 71
Section 13.9. Reliance on Judicial Order or
Certificate of Liquidating Agent........................................ 72
Section 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness..................................................... 72
Section 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights.......................... 72
Section 13.12. Article Applicable to Paying Agents..................................... 72
Section 13.13. Certain Conversions or Exchanges
Deemed Payment.......................................................... 73
ANNEX A Form of Restricted Securities Certificate
</TABLE>
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<PAGE>
JUNIOR SUBORDINATED INDENTURE
-----------------------------
THIS JUNIOR SUBORDINATED INDENTURE, dated as of __________, 1999
between GOLD BANC CORPORATION, INC., a Kansas corporation (the "Company"),
having its principal office at 11301 Nall Avenue, Leawood, Kansas, 66211 and
BANKERS TRUST COMPANY, as Trustee, having its principal office at Four Albany
Street, 4th Floor, New York, New York 10006 (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its unsecured junior subordinated
deferrable interest debentures due ____________, 2029 (the "Securities") of
substantially the tenor hereinafter provided, including Securities issued to
evidence loans made to the Company from the proceeds from the issuance from time
to time by GBCI Capital Trust II, a Delaware business trust (the "Issuer Trust")
of undivided preferred beneficial interests in the assets of such Issuer Trust
(the "Preferred Securities") and common undivided interests in the assets of
such Issuer Trust (the "Common Securities" and, collectively with the Preferred
Securities, the "Trust Securities"), and to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as such term is defined in Section 1.1 hereof)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, and intending
to be legally bound hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
<PAGE>
(c) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect at the time of computation;
(e) whenever the context may require, any gender shall be deemed to
include the other;
(f) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(g) the words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"25% Capital Limitation" means the limitation imposed by the Federal
Reserve that the proceeds of certain qualifying securities similar to the Trust
Securities will qualify as Tier 1 capital of the Company up to an amount not to
exceed, when taken together with all cumulative preferred stock of the Company,
if any, 25% of the Company's Tier 1 capital, or any subsequent limitation
adopted by the Federal Reserve.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which the Issuer Trust has become subject from time to
time as a result of a Tax Event.
"Administrator" means, in respect of the Issuer Trust, each Person
appointed in accordance with the Trust Agreement, solely in such Person's
capacity as Administrator of the Issuer Trust and not in such Person's
individual capacity, or any successor Administrator appointed as therein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
2
<PAGE>
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means the board of directors of the Company or the
executive committee of the board of directors of the Company (or any other
committee of the board of directors of the Company performing similar functions)
or, for purposes of this Indenture, a committee designated by the board of
directors of the Company (or such committee), comprised of two or more members
of the board of directors of the Company or officers of the Company, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or any Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, 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) a Saturday or Sunday, (b) a
day on which banking institutions in the State of Kansas or the City of New York
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Corporate Trust Office of the Trustee, or, with respect to the
Securities initially issued to the Issuer Trust, the "Corporate Trust Office"
(as defined in the Trust Agreement) of the Property Trustee or the Delaware
Trustee under the Trust Agreement, is closed for business.
"Capital Treatment Event" means, in respect of the Issuer Trust, the
reasonable determination by the Company that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Preferred Securities of the Issuer Trust, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount
equal to the Liquidation Amount (as such term is defined in the Trust Agreement)
of such Preferred Securities as "Tier 1 Capital" (or the then equivalent
thereof), except as otherwise restricted under the 25% Capital Limitation, for
purposes of the risk-based capital adequacy guidelines of the Federal Reserve,
as then in effect and applicable to the Company.
3
<PAGE>
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" means the common stock, $1.00 par value per share, of
the Company.
"Company" means the Person named as the "Company" in the preamble of
this instrument until a successor entity shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor entity.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by any Chairman of the Board
of Directors, any Vice Chairman of the Board of Directors, its Chief Executive
Officer, President or a Vice President, and by its Chief Financial Officer, its
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at Four Albany Street, 4th Floor, New
York, New York 10006.
"Creditor" has the meaning specified in Section 6.7.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to the Issuer Trust, the Person
identified as the "Delaware Trustee" in the Trust Agreement, solely in its
capacity as Delaware Trustee of the Issuer Trust under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware trustee appointed as therein provided.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 3.1 (or any
successor thereto).
"Discount Security" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
The term "entity" includes a bank, corporation, association, company,
limited liability company, joint-stock company or business trust.
4
<PAGE>
"Event of Default," has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means Board of Governors of the Federal Reserve
System.
"Global Security" means a Security in the form prescribed in Section
2.4 evidencing all or part of the Securities, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means, with respect to the Issuer Trust, the Guarantee
Agreement, dated ___________, 1999, executed by the Company for the benefit of
the Holders of the Preferred Securities issued by the Issuer Trust as modified,
amended or supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 and
any successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Issuer Trust of an
Opinion of Counsel, rendered by counsel experienced in such matters, to the
effect that, as a result of the occurrence of a change in law or regulation or a
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 Issuer Trust is or 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 Preferred Securities of the
Issuer Trust.
5
<PAGE>
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Liquidation Amount" has the meaning assigned in the Trust Agreement.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(c).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Chief Executive Officer,
President or a Vice President, and by the Chief Financial Officer, Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with;
provided, however, that the Officers' Certificate delivered pursuant to the
provisions of Section 10.4 hereof shall comply with the provisions of Section
314 of the Trust Indenture Act.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company or any Affiliate of the Company.
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
6
<PAGE>
(c) Securities in substitution for or in lieu of other Securities which
have been authenticated and delivered or that have been paid pursuant to Section
3.6, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor (other than, for the avoidance of doubt, the
Issuer Trust to which Securities of the applicable series were initially issued)
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor (other than, for the avoidance of doubt, the
Issuer Trust). Upon the written request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor (other than, for the avoidance of doubt, the
Issuer Trust), and, subject to the provisions of Section 6.1, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
"Outstanding Preferred Securities" means the $ 28,750,000 aggregate
liquidation amount of 8.75% Preferred Securities issued by GBCI Capital Trust.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on, or other
amounts in respect of any Securities on behalf of the Company.
"Person" means any individual, partnership, trust, unincorporated
organization or entity (as defined herein) or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities, the place or
places where the principal of (and premium, if any) and interest on the
Securities are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
7
<PAGE>
"Preferred Securities" has the meaning specified in the first recital
of this Indenture.
"Principal Subsidiary Bank" means each of (a) Exchange National Bank,
Provident Bank, f.s.b, Farmers National Bank, Peoples National Bank, Citizens
State Bank and Trust Company, First National Bank in Alma, Farmers State Bank,
The First State Bank and Trust Company, Peoples State Bank, The Trust Company,
and Citizens Bank of Tulsa, (b) any other banking subsidiary of the Company the
consolidated assets of which constitute 20% or more of the consolidated assets
of the Company and its consolidated subsidiaries, (c) any other banking
subsidiary designated as a Principal Subsidiary Bank pursuant to a Board
Resolution and set forth in an Officers' Certificate delivered to the Trustee,
and (d) any subsidiary of the Company that owns, directly or indirectly, any
voting securities, or options, warrants or rights to subscribe for or purchase
voting securities, of any Principal Subsidiary Bank under clause (a), (b) or
(c), and in the case of clause (a), (b), (c) or (d) their respective successors
(whether by consolidation, merger, conversion, transfer of substantially all
their assets and business or otherwise) so long as any such successor is a
banking subsidiary (in the case of clause (a), (b) or (c)) or a subsidiary (in
the case of clause (d)) of the Company.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to the Issuer Trust, the Person
identified as the "Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee of the Issuer Trust under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities means, unless otherwise provided pursuant to
Section 3.1 with respect to the Securities, the close of business on March 15,
June 15, September 15 or December 15 next preceding such Interest Payment Date
(whether or not a Business Day).
"Responsible Officer", when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, principal, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Security" means each Security required pursuant to Section
3.6(c) to bear a Restricted Securities Legend.
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"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex A.
"Restricted Securities Legend" means a legend substantially in the form
of the legend required in the form of Security set forth in Section 2.2 to be
placed upon a Restricted Security.
"Rights Plan" means any plan of the Company providing for the issuance
by the Company to all holders of its Common Stock, $1.00 par value per share, of
rights entitling the holders thereof to subscribe for or purchase shares of any
class or series of capital stock of the Company which rights (a) are deemed to
be transferred with such shares of such Common Stock, (b) are not exercisable,
and (c) are also issued in respect of future issuances of such Common Stock, in
each case until the occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior Indebtedness" means, whether recourse is to all or a portion of
the assets of the Company and whether or not contingent, (a) every obligation of
the Company for money borrowed; (b) every obligation of the Company evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(c) every reimbursement obligation of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of the
Company; (d) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (e) every
capital lease obligation of the Company; (f) every obligation of the Company for
claims (as defined in Section 101(4) of the United States Bankruptcy Code of
1978, as amended) in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements; and (g)
every obligation of the type referred to in clauses (a) through (f) of another
person and all dividends of another person the payment of which, in either case,
the Company has guaranteed or is responsible or liable, directly or indirectly,
as obligor or otherwise. Without limiting the generality of the foregoing,
Senior Indebtedness shall include __________________. Senior Indebtedness shall
not include (a) any obligations which, by their terms, are expressly stated to
rank pari passu in right of payment with, or to not be superior in right of
payment to, the Junior Subordinated Debentures, (b) any Senior Indebtedness of
the Company which when incurred and without respect to any election under
Section 1111(b) of the United States Bankruptcy Code of 1978, as amended, was
without recourse to the Company, (c) any indebtedness of the Company to any of
its subsidiaries, (d) indebtedness to any executive officer or director of the
Company, or (e) any indebtedness in respect of debt securities issued to any
trust, or a trustee of such trust,
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partnership or other entity affiliated with the Company that is a financing
entity of the Company in connection with the issuance of such financing entity
of securities that are similar to the Preferred Securities, including the
obligations associated with the Outstanding Preferred Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
pursuant to the terms of such Security as the fixed date on which the principal
of such Security or such installment of principal or interest is due and
payable, as such date may, in the case of such principal, be shortened or
extended as provided pursuant to the terms of such Security and this Indenture.
"Subsidiary" means an entity more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of
Counsel, rendered by 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 or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities of the Issuer Trust, there is more than
an insubstantial risk that (a) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States federal income
tax with respect to income received or accrued on the corresponding series of
Securities issued by the Company to the Issuer Trust, (b) interest payable by
the Company on the Securities is not, or within 90 days of the delivery of such
Opinion of Counsel will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes, or (c) the Issuer Trust is, or
will be within 90 days of the delivery of such Opinion of Counsel, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of __________, 1999, as amended, modified or supplemented from time to time,
among the trustees of the Issuer Trust named therein, the Company, as depositor,
and the holders from time to time of undivided beneficial ownership interests in
the assets of the Issuer Trust.
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"Trustee" means the Person named as the "Trustee" in the preamble of
this Indenture, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities
shall mean the Trustee with respect to Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, or any successor statute, in each
case as amended from time to time, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Vice President," when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including covenants compliance with
which constitutes a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(a) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
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(d) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his or her certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given, made or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution
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thereof. Where such execution is by a Person acting in other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be provided in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this Section 1.4(f) shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
Section 1.4(g). If any record date is set pursuant to this Section 1.4(f), the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided, however that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date (as defined below) by Holders of the requisite principal amount
of Outstanding Securities on such record date. Nothing in this Section 1.4(f)
shall be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this Section
1.4(f) (whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect), and nothing in this Section
1.4(f) shall be construed to render ineffective any action taken by Holders of
the requisite principal amount of Outstanding Securities on the date such action
is taken. Promptly after any record date is set pursuant to this Section 1.4(f),
the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities in the manner set forth in
Section 1.6.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(b), or (iv) any direction referred to in Section 5.12, in each
case with respect to Securities. If any record date is set pursuant to this
Section 1.4(g), the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record date,
provided, however that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the requisite
principal amount
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of Outstanding Securities on such record date. Nothing in this Section 1.4(g)
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this Section
1.4(g) (whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect) and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities in the manner set forth in
Section 1.6.
(h) With respect to any record date set pursuant to this Section 1.4,
the party hereto that sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section 1.6
on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this Section 1.4(h). Notwithstanding the foregoing, no Expiration Date shall
be later than the 180th day after the applicable record date.
(i) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
Section 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder, any holder of Preferred Securities or
the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
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Section 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail services or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the Securities, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required thereunder to be a part of and
govern this Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and
9.2, the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities) payment of interest or principal (and
premium, if any) or other amounts in respect of such Security need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (in each case with the
same force and effect as if made on the Interest Payment Date or Redemption Date
or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
(a) The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article II, or in such
other form or forms as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 with respect to the authentication and delivery of
such Securities.
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(b) The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) Securities distributed to holders of Global Preferred Securities
(as defined in the Trust Agreement) upon the dissolution of the Issuer Trust
shall be distributed in the form of one or more Global Securities registered in
the name of a Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or with such Depositary, for credit
by the Depositary to the respective accounts of the beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Preferred Securities other than Global
Preferred Securities upon the dissolution of the Issuer Trust shall not be
issued in the form of a Global Security or any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
Section 2.2. Form of Face of Security.
GOLD BANC CORPORATION, INC.
_____% Junior Subordinated Deferrable Interest Debentures due ____________, 2029
[If the Security is a Restricted Security, insert - THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) BY AN INITIAL INVESTOR THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT,
(I) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (B) BY AN INITIAL INVESTOR THAT IS A QUALIFIED
INSTITUTIONAL BUYER OR BY ANY SUBSEQUENT INVESTOR, AS SET FORTH IN (A) ABOVE
AND, IN ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES. THE HOLDER OF THIS SECURITY AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED BY AN INITIAL
INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN GLOBAL
FORM AND MAY NOT BE
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TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS, AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. NO REPRESENTATION
CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
RESALES OF THE SECURITIES.]
No. $__________
Gold Banc Corporation, Inc., a Kansas corporation (hereinafter called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to GBCI
Capital Trust II, or registered assigns, the principal sum of __________ Dollars
on ____________, 2029, or such other principal amount represented hereby as may
be set forth in the records of the Securities Registrar hereinafter referred to
in accordance with the Indenture provided that the Company may shorten the
Stated Maturity of the principal of this Security to a date not earlier than
____________, 2004. The Company further promises to pay interest on said
principal from __________, 1999, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing ____________, 1999 at the rate of _____%
per annum, together with Additional Sums, if any, as provided in Section 10.6 of
the Indenture, until the principal hereof is paid or duly provided for or made
available for payment; provided that any overdue principal, premium or
Additional Sums and any overdue installment of interest shall bear Additional
Interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), compounded quarterly from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand. The amount of interest payable for any
period less than a full interest period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed in a partial
month in such period. The amount of interest payable for any full interest
period shall be computed by dividing the applicable rate per annum by four. The
interest 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 Security (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 the 15th day of March, June, September and December (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of this Security, from
time to time to defer the payment of
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<PAGE>
interest on this Security for up to 20 consecutive quarterly interest payment
periods with respect to each deferral period (each an "Extension Period"),
during which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which the
Company shall pay all interest then accrued and unpaid including Additional
Interest, as provided below; provided however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security, as then in
effect, and no such Extension Period may end on a date other than an Interest
Payment Date; and provided further, however, that during any such Extension
Period, the Company shall not (a) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (b) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to this Security, including the Company's obligation associated with
the Outstanding Preferred Securities (other than (i) 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 any 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,
(ii) as a result of a reclassification, an 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, (iii) 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, (iv) any
declaration of a dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto, or (v) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided that no Extension Period
shall exceed 20 consecutive quarterly interest payment periods, extend beyond
the Stated Maturity of the principal of this Security or end on a date other
than an Interest Payment Date. Upon the termination of any such Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due on any Interest Payment Date, the Company may elect to begin a
new Extension Period, subject to the above conditions. No interest shall be due
and payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of _____% per
annum, compounded quarterly and calculated as set forth in the first paragraph
of this Security, from the date on which such amounts would otherwise have been
due and payable until paid or made available for payment. The Company shall give
the Holder of this Security and the Trustee notice of its election to begin any
Extension Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on this Security would be payable but for such
deferral or so long as such securities are held by GBCI Capital Trust II, or at
least one Business Day prior to the earlier of (a) the next
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<PAGE>
succeeding date on which Distributions on the Preferred Securities of the Issuer
Trust would be payable but for such deferral, and (b) the date on which the
Property Trustee of the Issuer Trust is required to give notice to holders of
such Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided however, that at the option of the Company payment of
interest may be made (a) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register, or (b) if to a
Holder of $1,000,000 or more in aggregate principal amount of this Security, by
wire transfer in immediately available funds upon written request to the Trustee
not later than 15 calendar days prior to the date on which the interest is
payable.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such actions as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each Holder hereof, by his or her acceptance hereof,
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual or facsimile signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
GOLD BANC CORPORATION, INC.
By:
---------------------------
Name:
Title:
Attest:
- --------------------------------
Secretary or Assistant Secretary
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
BANKERS TRUST COMPANY,
as Trustee
By:
---------------------------
Name:
Title:
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued under the
Junior Subordinated Indenture, dated as of __________, 1999 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Indebtedness and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $____________.
All terms used in this Security that are defined in the Indenture or,
if not defined in the Indenture, in the Amended and Restated Trust Agreement
dated as of __________, 1999 (as modified, amended or supplemented from time to
time the "Trust Agreement"), relating to GBCI Capital Trust II (the "Issuer
Trust") among the Company, as Depositor, the Trustees named
21
<PAGE>
therein and the Holders from time to time of the Trust Securities issued
pursuant thereto shall have the meanings assigned to them in the Indenture or
the Trust Agreement, as the case may be.
The Company has the right to redeem this Security (a) on or after
____________, 2004, in whole at any time or in part from time to time, or (b) in
whole (but not in part), at any time within 90 days following the occurrence and
during the continuation of a Tax Event, Investment Company Event, or Capital
Treatment Event, in each case at the Redemption Price described below, and
subject to possible regulatory approval. The Redemption Price shall equal 100%
of the principal amount hereof being redeemed, together with accrued interest to
but excluding the date fixed for redemption.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
[If applicable, insert - The Indenture contains provisions for
defeasance at any time [of the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance by the Company with certain
conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities to be affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Securities at the time Outstanding, on behalf of the Holders of
all Securities, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
[If the Security is not a Discount Security, insert - As provided in
and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal amount of all the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
provided that, if upon an Event of Default, the Trustee or such Holders fail to
declare the principal of all the Outstanding Securities to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee; and upon any
such declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities shall become immediately due and
payable, provided that the payment of principal and interest
22
<PAGE>
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert - As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities at the time Outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare an amount of
principal of the Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
if upon an Event of Default, the Trustee or such Holders fail to declare such
principal amount of the Outstanding Securities to be immediately due and
payable, the Holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee. The principal
amount payable upon such acceleration shall be equal to [insert formula for
determining the amount]. Upon any such declaration, such amount of the principal
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable, provided that the payment
of such principal and interest (including any Additional Interest) on all the
Securities shall remain subordinated to the extent provided in Article XIII of
the Indenture. Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on this Security shall
terminate.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including Additional Interest) on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
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<PAGE>
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agrees that for United States federal, state and
local tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY, DOES
NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.
Section 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
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<PAGE>
Section 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is $____________.
(b) Subject to Section 3.16, the Securities' Stated Maturity shall be
____________, 2029.
(c) The Securities, established pursuant to a Board Resolution, shall
bear interest at a per annum rate equal to _____% from __________, 1999 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to deferral as set
forth in Section 3.12), in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing ____________, 1999, until the principal
thereof is paid or made available for payment. Interest will compound quarterly
and will accrue at a per annum rate equal to 8.50% to the extent permitted by
applicable law, on any interest installment in arrears for more than one
quarterly period or during an extension of an interest payment period as set
forth below in Section 3.12.
(d) The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Paying Agent in the
United States maintained for such purpose and at any other office or agency
maintained by the Company for such purpose in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) if to a Holder of $1,000,000 or more in aggregate principal
amount of this Security, by wire transfer in immediately available funds
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<PAGE>
upon written request to the Trustee not later than 15 calendar days prior to the
date on which the interest is payable, at such place and to such account as may
be designated by the Person entitled thereto as specified in the Security
Register.
(e) Securities may be issuable in whole or in part in the form of one
or more Global Securities and, in such case, the Depositary for such Global
Securities shall be The Depository Trust Company.
(f) The securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
Section 3.2. Denominations.
The Securities shall be in registered form without coupons and shall be
issuable in denominations of $__ and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, President or one of its Vice Presidents, and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Securities executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the Securities
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(i) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(ii) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
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<PAGE>
(iii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(c) If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
(d) Notwithstanding the provisions of Section 3.1 and Section 3.3(b),
if all Securities are not to be originally issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise required
pursuant to Section 3.3(b) at or prior to the authentication of each Security if
such documents are delivered at or prior to the authentication upon original
issuance of the first Security to be issued.
(e) Each Security shall be dated the date of its authentication.
(f) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual or facsimile signature of one of its
authorized officers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities.
(a) Pending the preparation of definitive Securities, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
(b) If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without
27
<PAGE>
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive securities,
of any authorized denominations having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
Section 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor within 90 days of receipt of
such notice from the Depositary, (ii) the Company executes and delivers to the
Trustee a Company Order stating that the Company elects to terminate the
book-entry system through the Depositary, or (iii) there shall have occurred and
be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Security
to be so exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Securities
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security by the Depositary, accompanied by registration
instructions, the Trustee shall, subject to Section 3.6(b) and as otherwise
provided in this Article III, authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) in accordance with
the instructions of the Depositary. The Trustee shall not be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this
28
<PAGE>
Article III, Section 9.6 or 11.6 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such Security
is registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or agent. Neither the
Trustee nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
Section 3.6. Registration, Transfer and Exchange Generally; Certain
Transfers and Exchanges; Securities Act Legends.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the
offices or agencies of the Company designated for that purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations of like tenor and aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations, of like tenor and aggregate
principal amount and bearing such restrictive legends as may be required by this
Indenture, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
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<PAGE>
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (i) to issue, exchange or register the transfer of
any Security during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of the notice of
redemption, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture, transfers and exchanges of Securities and
beneficial interests in a Global Security shall be made only in accordance with
this Section 3.6(b).
(i) Restricted Non-Global Security to Global Security. If the
Holder of a Restricted Security (other than a Global Security) wishes
at any time to transfer all or any portion of such Security to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in a Global Security, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Security as provided in Section 3.6(a) and instructions
satisfactory to the Securities Registrar directing that a beneficial
interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a
specified Agent Member's account and (B) a Restricted Securities
Certificate duly executed by such Holder or such Holder's attorney duly
authorized in writing, then the Securities Registrar shall cancel such
Security (and issue a new Security in respect of any untransferred
portion thereof) as provided in Section 3.6(a) and increase the
aggregate principal amount of the Global Security by the specified
principal amount as provided in Section 3.5(c).
(ii) Non-Global Security to Non-Global Security. A Security
that is not a Global Security may be transferred, in whole or in part,
to a Person who takes delivery in the form of another Security that is
not a Global Security as provided in Section 3.6(a), provided that if
the Security to be transferred in whole or in part is a Restricted
Security, the Securities Registrar shall have received a Restricted
Securities Certificate duly executed by the transferor Holder or such
Holder's attorney duly authorized in writing.
(iii) Exchanges Between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged
for a Security that is not a Global Security as provided in Section
3.5.
(iv) Certain Initial Transfers of Non-Global Securities. In
the case of Securities initially issued other than in global form, an
initial transfer or exchange of such
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Securities that does not involve any change in beneficial ownership may
be made to an Institutional Accredited Investor or Investors as if such
transfer or exchange were not an initial transfer or exchange;
provided, however that written certification shall be provided by the
transferee and transferor of such Securities to the Securities
Registrar that such transfer or exchange does not involve a change in
beneficial ownership.
(c) Restricted Securities Legend. Except as set forth below, all
Securities shall bear a Restricted Securities Legend:
(i) subject to the following clauses of this Section 3.6(c), a
Security or any portion thereof that is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Restricted Securities Legend while represented thereby;
(ii) subject to the following clauses of this Section 3.6(c),
a new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall, if such new Security is
required pursuant to Section 3.6(b)(ii) or (iii) to be issued in the
form of a Restricted Security, bear a Restricted Securities Legend;
(iii) a new Security (other than a Global Security) that does
not bear a Restricted Security Legend may be issued in exchange for or
in lieu of a Restricted Security or any portion thereof that bears such
a legend if, in the Company's judgment, placing such a legend upon such
new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the written direction of the Company in the form of an Officer's
Certificate, shall authenticate and deliver such a new Security as
provided in this Article III;
(iv) notwithstanding the foregoing provisions of this Section
3.6(c), a Successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144, in
which case the Trustee, at the written direction of the Company in the
form of an Officer's Certificate, shall authenticate and deliver a new
Security bearing a Restricted Securities Legend in exchange for such
Successor Security as provided in this Article III; and
(v) Securities distributed to a holder of Preferred Securities
upon dissolution of an Issuer Trust shall bear a Restricted Securities
Legend if the Preferred Securities so held bear a similar legend.
Section 3.7. Mutilated, Lost and Stolen Securities.
(a) If any mutilated Security, including any temporary Securities, is
surrendered to the Trustee together with such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security, of like tenor and aggregate
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principal amount, bearing the same legends, and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser or a
protected purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security, of like tenor and aggregate principal amount and
bearing the same legends as such destroyed, lost or stolen Security, and bearing
a number not contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section 3.7, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
(f) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.8. Payment of Interest and Additional Interest; Interest Rights
Preserved.
(a) Interest and Additional Interest on any Security that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date, shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities, except that, unless otherwise
provided in the Securities, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security that is issued between a Regular
Record Date and the related Interest Payment Date shall be payable as provided
in such Security or in the Board Resolution pursuant to Section 3.1 with respect
to the Securities.
(b) Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Securities
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date
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by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities in respect of
which interest is in default (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and which shall be fixed
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 be not more than 15 days and
not 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 Holder of a Security at the address of such Holder as
it appears in the Securities Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the
English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of 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 the
Securities (or their respective Predecessor Securities) are registered
on such Special Record Date and shall no longer be payable pursuant to
the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities in respect of which
interest is in default may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (ii), such payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue interest, that were carried by such other Security.
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Section 3.9. Persons Deemed Owners.
(a) The Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 3.8) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
(b) No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by a Depositary or impair, as between a Depositary
and such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities, and Securities surrendered
directly to the Trustee for any such purpose, shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 3.10,
except as expressly permitted by this Indenture. All canceled Securities shall
be destroyed by the Trustee and the Trustee shall deliver to the Company a
certificate of such destruction.
Section 3.11. Computation of Interest.
Interest on the Securities for any period shall be computed on the
basis of a 360-day year of twelve 30-day months and the actual number of days
elapsed in any partial month in such period, and interest on the Securities for
a full period shall be computed by dividing the rate per annum by the number of
interest periods that together constitute a full twelve months.
Section 3.12. Deferrals of Interest Payment Dates.
(a) So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of the Securities,
from time to time to defer the payment of interest on such Securities for such
period or periods (each an "Extension Period") not to exceed the number of
consecutive interest periods that equal 20 consecutive quarterly periods with
respect to each Extension Period, during which Extension Periods the Company
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shall have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities to the extent
permitted by applicable law); provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of the Securities; and
provided further, however, that, during any such Extension Period, the Company
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock, 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 that rank pari passu in all respects with or junior in interest to the
Securities, including the Company's obligations associated with the Outstanding
Preferred Securities (other than (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 any 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 a reclassification, an 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 Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto, or (E) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to
such stock). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided that no Event of Default has
occurred and is continuing and provided further, that no Extension Period shall
exceed the period or periods specified in such Securities, extend beyond the
Stated Maturity of the principal of such Securities or end on a date other than
an Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. 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
shall give the Holders of the Securities and the Trustee notice of its election
to begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities would be
payable but for such deferral or, with respect to any Securities issued to the
Issuer Trust, so long as any such Securities are held by the Issuer Trust, at
least one Business Day prior to the earlier of (x) the next succeeding date on
which Distributions (as defined in the Trust Agreement) on the Preferred
Securities of the Issuer Trust would be payable but for such deferral, and (y)
the date on which the Property Trustee of the Issuer Trust is required to give
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notice to holders of such Preferred Securities of the record date or the date
such Distributions are payable, but in any event not less than one Business Day
prior to such record date.
(b) The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the Holders of the Outstanding Securities.
Section 3.13. Right of Set-Off.
With respect to the Securities initially issued to the Issuer Trust,
notwithstanding anything to the contrary herein, the Company shall have the
right to set off any payment it is otherwise required to make in respect of any
such Security to the extent the Company has theretofore made, or is concurrently
on the date of such payment making, a payment under the Guarantee or to a holder
of Preferred Securities pursuant to an action undertaken under Section 5.8 of
this Indenture.
Section 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
Section 3.15. CUSIP Numbers.
The Company, in issuing the Securities, may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notice of redemption and other similar or related materials as a convenience to
Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
Section 3.16. Shortening of Stated Maturity.
The Company shall have the right to shorten the Stated Maturity of the
principal of the Securities at any time to any date not earlier than
____________, 2004, provided that the Company shall give notice to the Holders,
the Trustee and, in the case of Securities issued to an Issuer Trust, the Issuer
Trust of such shortening no less than 90 days prior to the effectiveness
thereof.
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 3.7 and (B)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of subclause (ii)(A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount in the currency or currencies in which the Securities are
payable sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for the
principal (and premium, if any) and interest (including any Additional Interest)
to the date of such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Interest for the payment of which such money or
obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities, 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) default in the payment of any interest upon any Security, including
any Additional Interest in respect thereof, when it becomes due and payable and
continuance of such default for a period of 30 days (subject to the deferral of
any due date in the case of an Extension Period);
(b) default in the payment of the principal of (or premium, if any, on)
any Security at its Stated Maturity;
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities or in this Indenture for a period of 90 days after the date on which
written notice of such failure (a "Notice of Default"), requiring the Company to
remedy the same, shall have been given to the Company by the Trustee by
registered or certified mail or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities; or
(d) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Company or all or substantially all of its property; or a court or other
governmental agency shall enter a decree or order
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appointing a receiver or similar official and such decree or order shall remain
unstayed and undischarged for a period of 60 days.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than an Event of Default specified in
Section 5.1(d)) with respect to Securities at the time Outstanding occurs and is
continuing, then, and in every such case, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities may declare
the principal amount (or, if the Securities are Discount Securities, such
portion of the principal amount as may be specified in the terms) of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided, however that, if,
upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities fail to declare the principal of
all the Outstanding Securities to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount (as defined in the Trust Agreement)
of the Preferred Securities issued by the Issuer Trust then outstanding shall
have the right to make such declaration by a notice in writing to the Company
and the Trustee; and upon any such declaration such principal amount (or
specified portion thereof) of and the accrued interest (including any Additional
Interest) on all the Securities shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) with respect to Securities at the
time Outstanding occurs, the principal amount of all the Securities (or, if the
Securities are Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms) shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable. Payment of principal and interest (including any
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided.
(b) At any time after such a declaration of acceleration with respect
to the Securities has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article V,
provided the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all
Securities;
(B) any accrued Additional Interest on all
Securities;
(C) the principal of (and premium, if any, on) any
Securities that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Securities; and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default with respect to Securities, other
than the non-payment of the principal of Securities that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13.
(c) If the Holders of Securities fail to annul such declaration and
waive such default, the holders of a majority in aggregate Liquidation Amount
(as defined in the Trust Agreement) of Preferred Securities issued by the Issuer
Trust then outstanding shall also have the right to rescind and annul such
declaration and its consequences by written notice to the Company and the
Trustee, subject to the satisfaction of the conditions set forth in clauses (a)
and (b) above of this Section 5.2.
(d) No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that if:
(i) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest becomes due and payable and such default continues for a
period of 30 days or
(ii) default is made in the payment of the principal of (and
premium, if any, on) any Security at the Stated Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount then due and payable
on the Securities for principal (and premium, if any) and interest (including
any Additional Interest), and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the monies adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
(c) If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
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covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial or
administrative proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any Additional
Interest) owing and unpaid in respect to the Securities and to file
such other papers or documents as may be necessary or advisable and to
take any and all actions as are authorized under the Trust Indenture
Act in order to have the claims of the Holders and any predecessor to
the Trustee under Section 6.7 allowed in any such judicial or
administrative proceedings; and
(ii) in particular, the Trustee shall be authorized to collect
and receive any monies or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator, conservator (or other similar official) in any such judicial or
administrative proceeding is hereby authorized by each Holder to make such
payments to the Trustee for distribution in accordance with Section 5.6, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee
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shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, subject to Article XIII and after provision for the
payment of all the amounts owing the Trustee and any predecessor Trustee under
Section 6.7, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to the Securities pursuant to this Article V shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal (and premium, if
any) or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon Securities for principal (and premium, if any) and interest
(including any Additional Interest) in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities, as herein before
provided;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities; it being understood
and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Preferred
Securities.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest) on such
Security on the Stated Maturity (or in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder. Any registered
holder of the Preferred Securities issued by the Issuer Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(a) or
5.1(b), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (and premium, if any) and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate Liquidation Amount
(as defined in the Trust Agreement) of such Preferred Securities held by such
holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities issued
by the Issuer Trust has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then, and in every such case, the Company, the
Trustee, such Holders and such holder of Preferred Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Preferred Securities shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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Section 5.11. Delay or Omission Not Waiver.
(a) No delay or omission of the Trustee, any Holder of any Security
with respect to the Securities or any holder of any Preferred Security to
exercise any right or remedy accruing upon any Event of Default with respect to
the Securities shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein.
(b) Every right and remedy given by this Article V or by law to the
Trustee or to the Holders and the right and remedy given to the holders of
Preferred Securities by Section 5.8 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Holders or the holders of
Preferred Securities, as the case may be.
Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities 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 the
Securities, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities affected thereby and, the holders of a
majority in aggregate Liquidation Amount (as defined in the Trust Agreement) of
the Preferred Securities issued by the Issuer Trust may waive any past default
hereunder and its consequences except a default:
(i) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security (unless
such default has been cured and the Company has paid to or deposited
with the Trustee a sum sufficient to pay all matured installments of
interest (including Additional Interest) and all principal of (and
premium, if any on) all Securities due otherwise than by acceleration),
or
(ii) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of each
Holder of any Outstanding Security affected thereby.
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(b) Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities, or in the case of waiver by holders of Preferred Securities
issued by the Issuer Trust, by all holders of Preferred Securities issued by the
Issuer Trust.
(c) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his 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,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the Stated Maturity.
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in the case of any such certificates or opinions
that by any provisions 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) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) 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:
(i) this subsection shall not be construed to limit the effect
of subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) 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 Holders pursuant to Section 5.12 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 with respect to the Securities.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing
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that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities, the Trustee shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Securities Register, notice of such
default, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities; and provided further, that, in the case of any default of the
character specified in Section 5.1(c), no such notice to Holders of Securities
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section 6.2, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security 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 or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction; provided, however, that nothing herein shall relieve the
Trustee of its obligations upon the occurrence of an Event of Default that has
not been cured or waived to exercise with respect to the Securities such of the
rights and powers vested in the Trustee by this Indenture, and to use the same
degree of care and skill in exercising such rights and powers as a reasonably
prudent person would 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, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the 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.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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Section 6.7. Compensation and Reimbursement.
(a) The Company agrees to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder in such
amounts as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
(b) The Company agrees to reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense disbursement or advance as may be attributable
to its negligence, bad faith or willful misconduct.
(c) Since the Issuer Trust is being formed solely to facilitate an
investment in the Preferred Securities, the Company, as Holder of the Common
Securities, hereby covenants to pay all debts and obligations (other than with
respect to the Preferred Securities and the Common Securities) and all
reasonable costs and expenses of the Issuer Trust (including without limitation
all costs and expenses relating to the organization of the Issuer Trust, the
fees and expenses of the trustees and all reasonable costs and expenses relating
to the operation of the Issuer Trust) and to pay any and all taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed on the Issuer Trust by the United States, or any taxing
authority, so that the net amounts received and retained by the Issuer Trust and
the Property Trustee after paying such expenses will be equal to the amounts the
Issuer Trust and the Property Trustee would have received had no such costs or
expenses been incurred by or imposed on the Issuer Trust. The foregoing
obligations of the Company are for the benefit of, and shall be enforceable by,
any person to whom any such debts, obligations, costs, expenses and taxes are
owed (each, a "Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations directly against the
Company, and the Company irrevocably waives any right or remedy to require that
any such Creditor take any action against the Issuer Trust or any other person
before proceeding against the Company. The Company shall execute such additional
agreements as may be necessary or desirable to give full effect to the
foregoing.
(d) The Company shall indemnify the Trustee, its directors, officers,
employees and agents for, and hold them harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence, bad faith
or willful misconduct, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the reasonable costs and expenses of defending against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 5.1(d) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor statute.
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Section 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to,
and shall comply fully with, the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of said
Section 310(b).
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall be:
(a) a Person organized and doing business under the laws of the United
States of America or of any state or territory thereof or of the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) an entity organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation or
order of the Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
entity 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 6.9, the combined capital and surplus of such
entity shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article VI. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities issued hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
by giving written notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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(c) The Trustee may be removed at any time with respect to the
Securities by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (x) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to the Securities issued
hereunder, or (y) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of such Holder and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to the Securities issued hereunder and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee with respect to the Securities. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities shall be appointed
by Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities and each appointment of a
successor Trustee with respect to the Securities by mailing written notice of
such event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the Securities Register. Each notice shall
include the name of the successor Trustee with respect to the Securities and the
address of its Corporate Trust Office.
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Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in Section 6.11(a).
(c) No successor Trustee shall accept its appointment unless, at the
time of such acceptance, such successor Trustee shall be qualified and eligible
under this Article VI.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such entity
shall be otherwise qualified and eligible under this Article VI, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated, and in case any Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall have
the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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Section 6.14. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities, which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be an entity organized and doing business under the laws of the United
States of America, 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 not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 6.14.
(b) Any entity into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any entity succeeding to all or substantially all of the corporate
trust business of an Authenticating Agent shall be the successor Authenticating
Agent hereunder, provided such entity shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent, which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities.
Any successor Authenticating Agent upon acceptance hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provision of
this Section.
(d) The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 6.7.
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(e) If an appointment is made pursuant to this Section 6.14, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: BANKERS TRUST COMPANY,
as Trustee
By:
----------------------------
As Authenticating Agent
By:
----------------------------
As Authenticating Agent
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) quarterly, not more than 15 days after March 15, June 15, September
15, and December 15 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such dates,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar, 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, excluding from any such list names and addresses received by the
Trustee in its capacity as Securities Registrar.
Section 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 7.3. Reports by Trustee and Paying Agent.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted within 60 days of January 31 in each
calendar year, commencing with January 31, 2000.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations issued thereunder
with respect to payments on, or with respect to, the Securities.
Section 7.4. Reports by Company.
The Company shall file or cause to be filed with the Trustee and with
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided in the Trust Indenture
Act. In the case of information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or Section 15(d) of the Exchange Act,
the Company shall file or cause the filing of such information documents or
reports with the Trustee within 15 days after the same is required to be filed
with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) if the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the entity formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance or transfer, or
that leases, the properties and assets of the Company substantially as an
entirety shall be an entity organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any), and interest (including any
Additional Interest) on all the Securities of every series and the performance
of every covenant of this Indenture on the part of the Company to be performed
or observed; provided, however, that nothing herein shall be deemed to restrict
or prohibit, and no supplemental indenture shall be required in the case of, the
merger of a Principal Subsidiary Bank with and into a Principal Subsidiary Bank
or the Company, the consolidation of Principal Subsidiary Banks into a Principal
Subsidiary Bank or the Company, or the sale or other disposition of all or
substantially all of the assets of any Principal Subsidiary Bank to another
Principal Subsidiary Bank or the Company, if, in any such case in which the
surviving, resulting or acquiring entity is not the Company, the Company would
own, directly or indirectly, at least 80% of the voting securities of the
Principal Subsidiary Bank (and of any other Principal Subsidiary Bank any voting
securities of which are owned, directly or indirectly, by such Principal
Subsidiary Bank) surviving such merger, resulting from such consolidation or
acquiring such assets;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with and, in the case of a transaction
subject to this Section 8.1 but not requiring a supplemental indenture under
paragraph (a) of this Section 8.1, an Officer's Certificate or Opinion of
Counsel to the effect that the surviving, resulting or successor entity is
legally bound by the Indenture and the Securities; and the Trustee, subject to
Section 6.1, may rely upon such Officers' Certificates and Opinions of Counsel
as conclusive evidence that such transaction complies with this Section 8.1.
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Section 8.2. Successor Company Substituted.
(a) Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor entity formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and in the event of any
such conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
(b) Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may amend
or waive any provision of this Indenture or enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained;
(b) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company;
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(c) to facilitate the issuance of Securities in certificated or other
definitive form;
(d) to add to the covenants of the Company for the benefit of the
Holders of the Securities or to surrender any right or power herein conferred
upon the Company;
(e) to add any additional Events of Default for the benefit of the
Holders of the Securities;
(f) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall not apply to any Outstanding
Securities;
(g) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (g) shall not
adversely affect the interest of the Holders of Securities in any material
respect or, in the case of the Securities issued to the Issuer Trust and for so
long as any of the Preferred Securities issued by the Issuer Trust shall remain
outstanding, the holders of such Preferred Securities;
(h) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(i) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest (including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Stated Maturity thereof pursuant to Section 5.2, or change the place of payment
where, or the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date),
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(b) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby;
provided, further, that, in the case of the Securities issued to the Issuer
Trust, so long as any of the Preferred Securities issued by the Issuer Trust
remains outstanding, (i) no such amendment shall be made that adversely affects
the holders of such Preferred Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of Default
or compliance with any covenant under this Indenture shall be effective, without
the prior consent of the holders of at least a majority of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of such Preferred
Securities then outstanding unless and until the principal of (and premium, if
any, on) the Securities and all accrued and (subject to Section 3.8) unpaid
interest (including any Additional Interest) thereon have been paid in full, and
(ii) no amendment shall be made to Section 5.8 of this Indenture that would
impair the rights of the holders of Preferred Securities issued by the Issuer
Trust provided therein without the prior consent of the holders of each such
Preferred Security then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued and (subject
to Section 3.8) unpaid interest (including any Additional Interest) thereon have
been paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent herein provided for relating to such action have
been complied with. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of
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this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Securities that
it will duly and punctually pay the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities in accordance
with the terms of such Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
(a) The Company will maintain in each Place of Payment an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities for such purposes. The Company
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will give prompt written notice to the Trustee of any such designation and any
change in the location of any such office or agency.
Section 10.3. Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with
respect to the Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest (including Additional Interest) on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest (including Additional Interest) so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its failure so to act.
(b) Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m., New York City time, on each due date of the principal of
(or premium, if any) or interest, including Additional Interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest, including Additional Interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal (and premium, if any) or interest, including Additional Interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its failure so to act.
(c) The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(i) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest (including Additional Interest) on
the Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(ii) give the Trustee notice of any default by the Company (or
any other obligor upon such Securities) in the making of any payment of
principal (and premium, if any) or interest (including Additional
Interest) in respect of any Security;
(iii) at any time during the continuance of any default with
respect to the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(iv) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
(d) The Company may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were
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held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and premium,
if any) or interest (including Additional Interest) on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or
interest (including Additional Interest) has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. For the purpose of this Section 10.4, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
Section 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, the Company may omit in any particular instance to comply
with any covenant or condition provided pursuant to Section 3.1, 9.1(c) or
9.1(d) with respect to the Securities, if before or after the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
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Section 10.6. Additional Sums.
So long as no Event of Default has occurred and is continuing and
except as otherwise specified as contemplated by Section 2.1 or Section 3.1, if:
(a) the Issuer Trust is the Holder of all of the Outstanding Securities, and (b)
a Tax Event described in clause (a) or (c) of the definition of "Tax Event" in
Section 1.1 hereof has occurred and is continuing in respect of the Issuer
Trust, the Company shall pay the Issuer Trust (and its permitted successors or
assigns under the Trust Agreement) for so long as the Issuer Trust (or its
permitted successor or assignee) is the registered holder of the Outstanding
Securities, such additional sums as may be necessary in order that the amount of
Distributions (including any Additional Amount (as defined in the Trust
Agreement)) then due and payable by the Issuer Trust on the Preferred Securities
and Common Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of such Additional Taxes (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional 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 pursuant to Section 3.12 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
Section 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities that it
shall not: (a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock, or (b) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest to the
Securities, including the Company's obligations associated with the Outstanding
Preferred Securities, (other than (i) 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 any 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 or
other event referred to below, (ii) as a result of a reclassification, 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, (iii) 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, (iv) any declaration of a dividend in connection with
any Rights Plan, or the issuance of rights, stock or other property under any
Rights Plan, or the redemption or repurchase of rights pursuant thereto, or (v)
any dividend in the form of stock,
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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) if at such time (A) there shall have occurred any event (x) of which
the Company has actual knowledge that with the giving of notice or the lapse of
time, or both, would constitute an Event of Default with respect to the
Securities, and (y) which the Company shall not have taken reasonable steps to
cure, (B) if the Securities are held by the Issuer Trust, the Company shall be
in default with respect to its payment of any obligations under the Guarantee
relating to the Preferred Securities issued by the Issuer Trust, or (C) the
Company shall have given notice of its election to begin an Extension Period
with respect to the Securities as provided herein and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of Securities issued to the
Issuer Trust (a) to hold, directly or indirectly, 100% of the Common Securities
of the Issuer Trust, provided that any permitted successor of the Company as
provided under Section 8.2 may succeed to the Company's ownership of such Common
Securities, (b) as holder of such Common Securities, not to voluntarily
terminate, windup or liquidate the Issuer Trust, other than (i) in connection
with a distribution of the Securities to the holders of the Preferred Securities
in liquidation of the Issuer Trust, or (ii) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement, and (c) to use
its reasonable efforts, consistent with the terms and provisions of the Trust
Agreement, to cause the Issuer Trust to continue not to be taxable as a
corporation for United States federal income tax purposes.
Section 10.8. Federal Tax Reports.
On or before December 15 of each year during which any Securities are
outstanding, the Company shall furnish to each Paying Agent such information as
may be reasonably requested by each Paying Agent in order that each Paying Agent
may prepare the information which it is required to report for such year on
Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each authorized
minimum denomination of principal amount at Stated Maturity of outstanding
Securities during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of this Article.
Redemption of Securities as permitted or required by any form of
Security issued pursuant to this Indenture shall be made in accordance with such
form of Security and this Article; provided, however, that, if any provision of
any such form of Security shall conflict with any provision of this Article XI,
the provision of such form of Security shall govern.
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Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, not less than 30 nor more than 60 days prior
to the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities held by the Issuer
Trust, the Property Trustee under the Trust Agreement of such date and of the
principal amount of Securities to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by
Section 11.4; provided, that, for so long as such Securities are held by the
Issuer Trust, such notice shall be given not less than 45 nor more than 75 days
prior to such Redemption Date (unless a shorter notice shall be satisfactory to
the Property Trustee under the Trust Agreement). In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing compliance
with such restriction.
Section 11.3. Selection of Securities to be Redeemed.
(a) If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security, provided that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.
(b) The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.
With respect to Securities to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate of
the Redemption Price provided pursuant to
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the Indenture together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (if such an estimate of the Redemption Price is given, a
subsequent notice shall be given as set forth above setting forth the Redemption
Price promptly following the calculation thereof);
(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal
amounts) of the particular Securities to be redeemed;
(d) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(f) such other provisions as may be required in respect of the terms of
the Securities; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice, if mailed in the manner provided above, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Company will deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and any accrued interest (including Additional
Interest) on, all the Securities (or portions thereof) that are to be redeemed
on that date.
Section 11.6. Payment of Securities Called for Redemption.
(a) If any notice of redemption has been given as provided in Section
11.4, the Securities or portion of Securities with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and
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redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date;
provided, however, that, installments of interest (including Additional
Interest) whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant record
dates according to their terms and the provisions of Section 3.8.
(b) Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
(c) If any Security called for redemption shall not be so paid under
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7. Right of Redemption of Securities Initially Issued to the
Issuer Trust.
(a) The Company, at its option, may redeem such Securities (i) on or
after _________, 2004, in whole at any time or in part from time to time, or
(ii) upon the occurrence and during the continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, at any time within 90
days following the occurrence and during the continuation of such Tax Event,
Investment Company Event or Capital Treatment Event, in whole (but not in part),
in each case at a Redemption Price specified in such Security, together with
accrued interest (including Additional Interest) to the Redemption Date.
(b) If less than all the Securities are to be redeemed, the aggregate
principal amount of such Securities remaining Outstanding after giving effect to
such redemption shall be sufficient to satisfy any provisions of the Trust
Agreement.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended indenture, no
sinking fund shall be established or maintained for the retirement of
Securities.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth
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in this Article, the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on each and all of the Securities
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
Section 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
(a) If the Company shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest (including
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
(b) In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii) any
proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (iii) any assignment by the Company for the benefit of creditors or
(iv) any other marshalling of the assets of the Company (each such event, if
any, herein sometimes referred to as a "Proceeding"), all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other entity
provided for by a plan of reorganization or readjustment, the payment of which
is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination provisions) be
payable or deliverable in respect of the Securities shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
(c) In the event of any Proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Company the amounts at the time due and owing on account of unpaid principal
of (and premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Securities, and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
any security, whether in cash, securities or other property (other
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than securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any plan of reorganization or readjustment), shall be received by
the Trustee or any Holder in contravention of any of the terms hereof and before
all Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
(d) The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for the holders
of Senior Indebtedness or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
(e) The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(f) The securing of any obligations of the Company, otherwise ranking
on a parity with the Securities or ranking junior to the Securities shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
Section 13.3. Payment Permitted if No Default.
Nothing contained in this Article XIII or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time, except
during the pendency of the conditions described in the first paragraph of
Section 13.2 or of any Proceeding referred to in Section 13.2, from making
payments at any time of principal of (and premium, if any) or interest
(including Additional Interest) on the Securities, or (b) the application by the
Trustee of any monies deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on
all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a
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manner satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company that by its express terms is subordinated to Senior Indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation by reason
of any payments or distributions made to holders of such Senior Indebtedness) to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium if any) and interest (including
Additional Interest) on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article XIII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article XIII or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which are absolute
and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the Company other than their rights in
relation to the holders of Senior Indebtedness; or (c) prevent the Trustee or
the Holder of any Security (or to the extent expressly provided herein, the
holder of any Preferred Security) from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, including filing
and voting claims in any Proceeding, subject to the rights, if any, under this
Article XIII of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article XIII and appoints the Trustee his or her attorney-in-fact for
any and all such purposes.
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Section 13.7 No Waiver of Subordination Provisions.
(a) 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
be otherwise charged with.
(b) Without in any way limiting the generality of Section 13.7(a), 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 Holders of the Securities,
without incurring responsibility to such Holders of the Securities and without
impairing or releasing the subordination provided in this Article XIII or the
obligations hereunder of such Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extent the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
Section 13.8. Notice to Trustee.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article XIII or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, the payment of the
principal of (and premium, if any, on) or interest (including any Additional
Interest) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
(b) Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee or attorney-in-fact therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or
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distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of 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, 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 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, conservator,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
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 XIII.
Section 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Company or to any other
Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness that
may at any time be 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.
Section 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XIII shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
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Section 13.13. Certain Conversions or Exchanges Deemed Payment.
For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any, on) or interest (including any Additional Interest) on such
Securities or on account of the purchase or other acquisition of such
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company, and (ii) securities
of the Company that are subordinated in right of payment to all Senior
Indebtedness that may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
GOLD BANC CORPORATION, INC.
By:
----------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Trustee
By:
----------------------------
Name:
Title:
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ANNEX A
FORM OF RESTRICTED SECURITIES CERTIFICATE
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.6(b) of
the Indenture referred to below)
[ ],
as Securities Registrar
[address]
Re: __ % Junior Subordinated Debentures of Gold Banc Corporation, Inc.
(the "Securities")
Reference is made to the Junior Subordinated Indenture, dated as of
______ __, 1999 (the "Indenture"), between Gold Banc Corporation, Inc., a Kansas
corporation, and Bankers Trust Company, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S, Rule 144A or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used here as
so defined.
This certificate relates to $________ aggregate principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
CERTIFICATE No(s).
CURRENTLY IN GLOBAL FORM: Yes No (check one)
--- ---
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (a) it is the sole beneficial owner
of the Specified Securities or (b) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through a Depositary or an Agent Member in the name of the Undersigned, as or on
behalf of the Owner. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
<PAGE>
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A, Rule 904 of Regulation S or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies that:
(a) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(i) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(ii) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
(b) Rule 904 Transfers. If the transfer is being effected in accordance
with Rule 904:
(i) the Owner is not a distributor of theSecurities, an
affiliate of the Company or any such distributor or a person acting in
behalf of any of the foregoing;
(ii) the offer of the Specified Securities was not made to a
person in the United States;
(iii) either;
(A) at the time the buy order was
originated, the Transferee was outside the United States or
the Owner and any person acting on its behalf reasonably
believed that the Transferee was outside the United States, or
(B) the transaction is being executed in, on
or through the facilities of the Eurobond market, as regulated
by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf know that the transaction
has been prearranged with a buyer in the United States;
(iv) no directed selling efforts within the meaning of Rule
902 of Regulation S have been made in the United States by or on behalf of
the Owner or any affiliate thereof; and
(v) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
<PAGE>
(c) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(i) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the date the Specified Securities were acquired from the
Company or from an affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144;
(ii) the transfer is occurring after a holding period by the
Owner of at least three years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate (as such
term is defined in Rule 144) of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Company; or
(iii) the Owner is a Qualified Institutional Buyer under Rule
144A or has acquired the Securities otherwise in accordance with Sections
(a), (b) or (c) hereof and is transferring the Securities to an
institutional accredited investor in a transaction exempt from the
requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Underwriters (as defined in the
Trust Agreement relating to the Issuer Trust to which the Securities were
initially issued).
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate)
Dated: By:
-------------------- ------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
<PAGE>
Exhibit 4(c)
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
Among
GOLD BANC CORPORATION, INC.
(as Depositor)
BANKERS TRUST COMPANY
(as Property Trustee)
and
BANKERS TRUST (DELAWARE)
as Delaware Trustee
dated as of
__________, 1999
GBCI CAPITAL TRUST II
- --------------------------------------------------------------------------------
<PAGE>
GBCI CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ---------------- ----------------
<S> <C> <C>
Section 310 (a)(1).......................................................8.7
(a)(2).......................................................8.7
(a)(3).......................................................8.9
(a)(4).......................................................2.7(a)(ii)
(b)..........................................................8.8, 10.10(b)
Section 311 (a)..........................................................8.13, 10.10(b)
(b)..........................................................8.13, 10.10(b)
Section 312 (a)..........................................................10.10(b)
(b)..........................................................10.10(b), (f)
(c)..........................................................5.7
Section 313 (a)..........................................................8.15(a)
(a)(4).......................................................10.10(c)
(b)..........................................................8.15(c), 10.10(c)
(c)..........................................................10.8, 10.10(c)
(d)..........................................................10.10(c)
Section 314 (a)..........................................................8.16, 10.10(d)
(b)..........................................................Not Applicable
(c)(1).......................................................8.17, 10.10(d), (e)
(c)(2).......................................................8.17, 10.10(d), (e)
(c)(3).......................................................8.17, 10.10(d), (e)
(e)..........................................................8.17, 10.10(e)
Section 315 (a)..........................................................8.1(d)
(b)..........................................................8.2
(c)..........................................................8.1(c)
(d)..........................................................8.1(d)
(e)..........................................................Not Applicable
Section 316 (a)..........................................................Not Applicable
(a)(1)(A)....................................................Not Applicable
(a)(1)(B)....................................................Not Applicable
(a)(2).......................................................Not Applicable
(b)..........................................................5.13
(c)..........................................................6.7
Section 317 (a)(1).......................................................Not Applicable
(a)(2).......................................................8.14
(b)..........................................................5.10
Section 318 (a)..........................................................10.10(a)
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I. DEFINED TERMS
Section 1.1. Definitions...........................................................1
ARTICLE II. CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name..................................................................12
Section 2.2. Office of the Delaware Trustee;
Principal Place of Business.........................................12
Section 2.3. Initial Contribution of Trust Property,
Organizational Expenses.............................................13
Section 2.4. Issuance of the Preferred Securities..................................13
Section 2.5. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debentures.............................................13
Section 2.6. Declaration of Trust..................................................14
Section 2.7. Authorization to Enter into Certain
Transactions........................................................14
Section 2.8. Assets of Trust.......................................................18
Section 2.9. Title to Trust Property...............................................18
ARTICLE III. PAYMENT ACCOUNT
Section 3.1. Payment Account.......................................................18
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.........................................................19
Section 4.2. Redemption............................................................20
Section 4.3. Subordination of Common Securities....................................22
Section 4.4. Payment Procedures....................................................22
Section 4.5. Tax Returns and Reports...............................................23
Section 4.6. Payment of Taxes, Duties, Etc.
of the Issuer Trust.................................................23
Section 4.7. Payments under Indenture or Pursuant
to Direct Actions...................................................23
Section 4.8. Liability of the Holder of Common
Securities..........................................................24
ARTICLE V. TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.....................................................24
Section 5.2. The Trust Securities Certificates.....................................24
Section 5.3. Execution and Delivery of Trust
Securities Certificates.............................................24
Section 5.4. Global Preferred Security.............................................25
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 5.5. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Preferred Securities
Certificates........................................................26
Section 5.6. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates.......................................28
Section 5.7. Persons Deemed Holders................................................28
Section 5.8. Access to List of Holders'
Names and Addresses.................................................28
Section 5.9. Maintenance of Office or Agency.......................................28
Section 5.10. Appointment of Paying Agent...........................................29
Section 5.11. Ownership of Common Securities
by Depositor........................................................29
Section 5.12. Notices to Clearing Agency............................................30
Section 5.13. Rights of Holders.....................................................30
ARTICLE VI. ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Holder's Voting
Rights..............................................................32
Section 6.2. Notice of Meetings....................................................33
Section 6.3. Meetings of Holders...................................................33
Section 6.4. Voting Rights.........................................................34
Section 6.5. Proxies, etc..........................................................34
Section 6.6. Holder Action by Written Consent......................................34
Section 6.7. Record Date for Voting and Other
Purposes............................................................34
Section 6.8. Acts of Holders.......................................................34
Section 6.9. Inspection of Records.................................................35
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties
of the Property Trustee and
the Delaware Trustee................................................36
Section 7.2. Representations and Warranties of
Depositor...........................................................37
ARTICLE VIII. THE ISSUER TRUSTEES; THE ADMINISTRATORS
Section 8.1. Certain Duties and Responsibilities...................................37
Section 8.2. Certain Notices.......................................................40
Section 8.3. Certain Rights of Property Trustee....................................40
Section 8.4. Not Responsible for Recitals
or Issuance of Securities...........................................41
Section 8.5. May Hold Securities...................................................42
Section 8.6. Compensation; Indemnity; Fees.........................................42
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and
Administrators......................................................43
Section 8.8. Conflicting Interests.................................................44
Section 8.9. Co-Trustees and Separate Trustee......................................44
Section 8.10. Resignation and Removal; Appointment
of Successor........................................................45
Section 8.11. Acceptance of Appointment by
Successor...........................................................47
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business..............................................47
Section 8.13. Preferential Collection of Claims
Against Depositor or Issuer Trust...................................47
Section 8.14. Trustee May File Proofs of Claim......................................48
Section 8.15. Reports by Property Trustee...........................................48
Section 8.16. Reports to the Property Trustee.......................................49
Section 8.17. Evidence of Compliance with Conditions
Precedent...........................................................49
Section 8.18. Number of Issuer Trustees.............................................49
Section 8.19. Delegation of Power...................................................49
Section 8.20. Appointment of Administrators.........................................49
ARTICLE IX. DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date......................................50
Section 9.2. Early Dissolution.....................................................50
Section 9.3. Termination...........................................................51
Section 9.4. Liquidation...........................................................51
Section 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Issuer Trust.................................52
ARTICLE X. MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders.......................................54
Section 10.2. Amendment.............................................................54
Section 10.3. Separability..........................................................55
Section 10.4. Governing Law.........................................................55
Section 10.5. Payments Due on Non-Business Day......................................55
Section 10.6. Successors............................................................56
Section 10.7. Headings..............................................................56
Section 10.8. Reports, Notices and Demands..........................................56
Section 10.9. Agreement Not to Petition.............................................57
Section 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act.................................................57
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.............................................58
Section 10.12. Counterparts..........................................................59
</TABLE>
iii
<PAGE>
EXHIBITS
--------
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT
------------------------------------
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________, 1999
(this "Trust Agreement"), is among (a) GOLD BANC CORPORATION, INC., a Kansas
corporation (including any successors or assigns, the "Depositor"), (b) BANKERS
TRUST COMPANY, a New York banking corporation, as property trustee (in such
capacity, the "Property Trustee" and, in its separate corporate capacity and not
in its capacity as Property Trustee, the "Bank"), and (c) BANKERS TRUST
(DELAWARE), a Delaware banking corporation, as Delaware trustee (the "Delaware
Trustee") (the Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Issuer Trustees") and (d) the several Holders, as
hereinafter defined.
RECITALS
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into a certain Trust Agreement, dated as of ________,
1999 (the "Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on __________, 1999 (the "Certificate of Trust"), a
copy of which is attached hereto as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (a) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (b) the issuance and sale of the Preferred
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (c) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures and (d) the appointment of
the Property Trustee and the Administrators.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(g) all references to the date the Preferred Securities were originally
issued shall refer to the date the ____% Preferred Securities were originally
issued.
"25% Capital Limitation" means the limitation imposed by the Federal
Reserve that the proceeds of certain qualifying securities similar to the Trust
Securities will qualify as Tier 1 capital of the issuer up to an amount not to
exceed, when taken together with all cumulative preferred stock of the
Depositor, if any, 25% of the Depositor's Tier 1 capital, or any subsequent
limitation adopted by the Federal Reserve.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or for a given period, the amount of Additional Interest
(as defined in the Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with Section
8.20 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore formed and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided; with the
initial Administrators being Brian J. Ruisinger and Steven E. Rector.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
<PAGE>
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred Security,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or, for purposes of this Trust Agreement, a committee designated by
the board of directors of the Depositor (or any such committee), comprised of
two or more members of the board of directors of the Depositor or officers of
the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Issuer Trustees.
3
<PAGE>
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the State of Kansas or in the City of New
York, are authorized or required by law or executive order to remain closed or
(c) a day on which the Property Trustee's Corporate Trust Office or the Delaware
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Capital Treatment Event" means, in respect of the Issuer Trust, the
reasonable determination by the Depositor that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Preferred Securities of the Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat an amount
equal to the Liquidation Amount of such Preferred Securities as "Tier 1 Capital"
(or the then equivalent thereof), except as otherwise restricted under the 25%
Capital Limitation, for purposes of the risk-based capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Depositor.
"Cede" means Cede & Co.
"Certificate Depositary Agreement" means the agreement among the Issuer
Trust, the Depositor and the Depositary, as the initial Clearing Agency, dated
as of the Closing Date, substantially in the form attached hereto as Exhibit B,
as the same may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the preamble to
this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary shall be the
initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery for the Firm Securities,
which date is also the date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended or any
successor statute, in each case as amended from time to time.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
4
<PAGE>
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto as
Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (a) with respect to the Property Trustee
or the Debenture Trustee, the principal office of the Property Trustee located
in the City of New York, New York, which at the time of the execution of this
Trust Agreement is located at Four Albany Street, New York, New York 10006;
Attention: Corporate Trust and Agency Group - Corporate Market Services, and (b)
with respect to the Delaware Trustee, the principal office of the Delaware
Trustee located at E.A. Delle Donne Corporate Center, Montgomery Building, 1101
Center Road, Suite 200, Wilmington, Delaware, 19805-1266.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date fixed for
redemption of such Junior Subordinated Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor, as trustee under the Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositary" means The Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
5
<PAGE>
"Event of Default" 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 occurrence of a Debenture Event of Default;
(b) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period of 30
days;
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable;
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trust in this Trust Agreement (other than
a covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c) 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 Issuer Trustees and the Depositor by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(e) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, in each case as amended from time to
time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Firm Securities" means an aggregate Liquidation Amount of $__________
of the Issuer Trust's ____% preferred securities.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers Trust Company, as guarantee trustee,
contemporaneously with the
6
<PAGE>
execution and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of
__________, 1999, between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940, as
amended or any successor statute, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Issuer Trust of an
Opinion of Counsel, rendered by counsel experienced in such matters, to the
effect that, as a result of the occurrence of a change in law or regulation or a
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 Issuer Trust is or 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 Preferred Securities.
"Issuer Trust" means GBCI Capital Trust II.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal amount
of the Depositor's ____% junior subordinated deferrable interest debentures, due
___________, 2029 which date may be shortened once at any time by the Depositor
to any date not earlier than __________, 2004 issued pursuant to the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation
7
<PAGE>
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures or the Liquidation Distributions are to be distributed to Holders of
Trust Securities in connection with a dissolution and liquidation of the Issuer
Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities or Common Securities, as the
case may be.
"Officers' Certificate" means, a certificate signed by the Chairman of
the Board, Chief Executive Officer, President or a Vice President and by the
Chief Financial Officer, the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Issuer Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of
$__________ of the Issuer Trust's ____% Preferred Securities, issuable to the
Underwriters, at their option, exercisable within 30 days after the date of the
Prospectus, solely to cover over-allotments, if any.
8
<PAGE>
"Option Preferred Securities Certificate" means the certificate
evidencing ownership of Preferred Securities issued if the Underwriters exercise
their option described in Section 2.4, which certificate shall be substantially
in the form attached hereto as Exhibit D.
"Original Trust Agreement" has the meaning specified in the preamble to
this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of the date
of determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities, provided that if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, and 5.6;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee, any
Administrator, or any Affiliate of the Depositor or any Issuer Trustee shall be
disregarded and deemed not to be Outstanding, except that (i) in determining
whether any Issuer Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Preferred
Securities that such Issuer Trustee or such Administrator, as the case may be,
knows to be so owned shall be so disregarded and (ii) the foregoing shall not
apply at any time when all of the outstanding Preferred Securities are owned by
the Depositor, one or more of the Issuer Trustees, one or more of the
Administrators and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrators the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency, directly or
indirectly, in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
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"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Junior
Subordinated Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached hereto as
Exhibit D.
"Preferred Security" means a Firm Security or an Option Security, each
constituting a preferred undivided beneficial interest in the assets of the
Issuer Trust, having a Liquidation Amount of $____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Prospectus" means the final prospectus covering the Preferred
Securities, Junior Subordinated Debentures and the Guarantee Agreement.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Junior Subordinated Debenture Redemption Date and
the stated maturity of the Junior Subordinated Debentures shall be a Redemption
Date for a Like Amount of Trust Securities, including but not limited to any
date of redemption pursuant to the occurrence of any Special Event.
"Redemption Price" means with respect to a redemption of any Trust
Security, the Liquidation Amount of such Trust Security, together with
accumulated but unpaid Distributions to but excluding the date fixed for
redemption, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Junior Subordinated
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, principal, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
the Indenture,
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and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event, or
Investment Company Event.
"Successor Securities Certificate" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate issued
after, and evidencing all or a portion of the same beneficial interest in the
Issuer Trust as that evidenced by, such particular Preferred Securities
Certificate; and, for the purposes of this definition, any Preferred Securities
Certificate executed and delivered under Section 5.6 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Preferred Securities Certificate shall
be deemed to evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Securities Certificate.
"Successor Security" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Issuer 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 or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of the Preferred Securities, there is more than an
insubstantial risk that (a) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States federal income
tax with respect to income received or accrued on the Junior Subordinated
Debentures, (b) interest payable by the Depositor on the Junior Subordinated
Debentures is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by the Depositor, in whole or in part, for United States
federal income tax purposes, or (c) the Issuer Trust is, or will be within 90
days of the delivery of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Time of Delivery" means 9:00 a.m. Eastern Standard Time, either (a)
with respect to the Firm Securities or the Common Securities, on the fourth
Business Day (unless postponed in accordance with the provisions of Section 4 of
the Underwriting Agreement) following the date of execution of the Underwriting
Agreement, or such other time not later than ten Business Days after such date
as shall be agreed upon by the Underwriters, the Issuer Trust and the Company,
or (b) with respect to the Option Securities, the Option Closing Date.
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"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (a) all Exhibits hereto, and (b) for all
purposes of this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, or any successor statute, in each
case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment Account, and (c) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriters" has the meaning specified in the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
________, 1999, among the Issuer Trust, the Depositor and the Underwriters, as
the same may be amended from time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name.
The Issuer Trust continued hereby shall be known as "GBCI Capital Trust
II," as such name may be modified from time to time by the Administrators
following written notice to the Holders of Trust Securities and the other Issuer
Trustees, in which name the Administrators and the Issuer Trustees may engage in
the transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Bankers
Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery Building, 1101
Center Road, Suite 200, Wilmington, Delaware, 19805-1266, Attention: Lisa
Wilkins, or such other address in the State of Delaware as the Delaware Trustee
may designate by written notice to the Holders and the Depositor. The principal
executive office of the Issuer Trust is in care of Gold Banc
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Corporation, Inc., 11301 Nall Avenue, Leawood, Kansas, 66211, Attention: Office
of the Secretary.
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer Trustees acknowledge receipt in trust from the Depositor in
connection with this Trust Agreement of the sum of $10, which constitutes the
initial Trust Property. The Depositor shall pay all organizational expenses of
the Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such reasonable expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
On ___________, 1999, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrator, on behalf of the Issuer
Trust, shall manually execute in accordance with Section 5.3 and the Property
Trustee shall authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Firm Securities Certificates, registered in the names requested by
the Underwriters, in an aggregate amount of 1,400,000 Firm Securities having an
aggregate Liquidation Amount of $___________, against receipt of the aggregate
purchase price of such Preferred Securities of $___________, by the Property
Trustee.
At the option of the Underwriters, within 30 days of the date of the
Prospectus, and solely for the purpose of covering an over-allotment, if any, an
Administrator, on behalf of the Issuer Trust, shall manually execute in
accordance with Section 5.3 and the Property Trustee shall authenticate in
accordance with Section 5.3 and deliver to the Underwriters, Option Preferred
Securities Certificates, registered in the names requested by the Underwriters,
representing up to _________ Option Securities having an aggregate Liquidation
Amount of up to $_________ against receipt of the aggregate purchase price of
such Option Securities of up to $_________ by the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and Purchase
of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall execute in
accordance with Section 5.3 and the Property Trustee shall authenticate in
accordance with Section 5.3 and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_________ Common Securities having an aggregate Liquidation Amount of $_________
against receipt by the Property Trustee of the aggregate purchase price of such
Common Securities of $_________ by the Property Trustee. In the event of any
exercise of an over-allottment option requiring issuance of additional Option
Preferred Securities Certificates, as described in Section 2.4 above, a
proportionate number of additional Common Securities Certificates, with
corresponding aggregate Liquidation Amount, shall be delivered to the
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Depositor. Contemporaneously with the executions, and deliveries of Common
Securities Certificates and any Preferred Securities Certificates, an
Administrator, on behalf of the Issuer Trust, shall subscribe for and purchase
from the Depositor, corresponding amounts of Junior Subordinated Debentures,
registered in the name of the Issuer Trust and having an aggregate principal
amount equal to $_________, plus, in the event of any exercise of the
over-allotment option (a) a corresponding additional number of Junior
Subordinated Debentures not exceeding an aggregate principal amount of
$_________ and (b) a corresponding number of Junior Subordinated Debentures not
exceeding an aggregate principal amount equal to the aggregate Liquidation
Amount of Common Securities issued pursuant to such exercise of an
over-allotment option; and, in satisfaction of the purchase price for such
Junior Subordinated Debentures, the Property Trustee, on behalf of the Issuer
Trust, shall deliver to the Depositor the sum of $_________, plus any
corresponding over-allotment option amount (being the sum of the amounts
delivered to the Property Trustee pursuant to (a) the second sentence of Section
2.4 and (b) the first and second sentences of this Section 2.5) and receive the
Junior Subordinated Debentures on behalf of the Issuer Trust.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a)
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Junior Subordinated Debentures, and (b) engage in only those other
activities necessary, convenient, or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Issuer
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators (as agents of the Issuer Trust),
with such Administrators having all rights, powers, and duties set forth herein
with respect to accomplishing the purposes of the Issuer Trust, and the
Administrators hereby accept such appointment, provided, however, that it is the
intent of the parties hereto that such Administrators shall not be trustees or
fiduciaries with respect to the Issuer Trust and this Trust Agreement shall be
construed in a manner consistent with such intent. The Property Trustee shall
have the right, power and authority to perform those duties assigned to the
Administrators. The Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrators set forth
herein. The Delaware Trustee shall be one of the trustees of the Issuer Trust
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Business Trust Act and for taking such actions as are required
to be taken by a Delaware trustee under the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of this Section
2.7 and in accordance with the following provisions (i) and (ii), the Issuer
Trustees and the Administrators shall act as follows:
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(i) Each Administrator shall have the power and authority and
is hereby authorized and directed to act on behalf of the Issuer Trust
with respect to the following:
(A) the compliance with the Underwriting Agreement
regarding the issuance and sale of the Trust Securities;
(B) the compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust
Indenture Act;
(C) execute the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Preferred Securities upon such
securities exchange or exchanges or upon the Nasdaq National
Market as shall be determined by the Depositor, with the
registration of the Preferred Securities under the Exchange
Act, if required, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the application for a taxpayer identification
number for the Issuer Trust;
(F) the preparation of a registration statement and a
prospectus in relation to the Preferred Securities, including
any amendments thereto and the taking of any action necessary
or desirable to sell the Preferred Securities in a transaction
or series of transactions subject to the registration
requirements of the Securities Act;
(G) cause the Issuer Trust to enter into, and
execute, deliver and perform on behalf of the Issuer Trust all
agreements, instruments, certificates or other documents as
such Administrator deems necessary or incidental to the
purposes and functions of the Issuer Trust; and
(H) any action incidental to the foregoing as the
Administrators may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority,
and is hereby authorized and directed, to act on behalf of the Issuer
Trust with respect to the following matters:
(A) establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the
rights, powers and privileges of the holder of the Junior
Subordinated Debentures;
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(C) receive and collect interest, principal and any
other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) distribute amounts owed to the Holders in respect
of the Trust Securities in accordance with the terms of this
Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar
to the extent appointed as such hereunder;
(F) send notices of default and other information
regarding the Trust Securities and the Junior Subordinated
Debentures to the Holders in accordance with this Trust
Agreement;
(G) distribute the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
wind up the affairs of and liquidate the Issuer Trust and
prepare, execute and file the certificate of cancellation with
the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c) or (d) of the definition of such term if
such Event of Default is by or with respect to the Property
Trustee), comply with the provisions of this Trust Agreement
and take any action to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of
any such action on any particular Holder); provided, however,
that nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise
required in this Trust Agreement; and
(J) take any action incidental or convenient to the
foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement;
provided, however, that nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise required in this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators (in each case acting on behalf of the Issuer
Trust) shall (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off, or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected to cause the Issuer
Trust to become taxable as a corporation for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, or (v) take or consent to
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any action that would result in the placement of a Lien on any of the Trust
Property. The Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the power and authority to assist the Issuer Trust with
respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission, and the execution and delivery on behalf of the Issuer
Trust, of a registration statement and a prospectus in relation to the
Preferred Securities, including any amendments thereto, and the taking
of any action necessary or desirable to sell the Preferred Securities
in a transaction or a series of transactions subject to the
registration requirements of 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
Preferred Securities and the determination of any and all such acts,
other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trustees of actions they must take
on behalf of the Issuer Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Issuer Trust or
on behalf of the Issuer Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
states in connection with the offer and sale of the Preferred
Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
as amended, including any amendments thereto;
(v) compliance with the listing requirements of the Preferred
Securities upon such securities exchange or exchanges, or upon the
Nasdaq National Market, as shall be determined by the Depositor, the
registration of the Preferred Securities under the Exchange Act, if
required, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing; and
(vi) 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 Property Trustee are authorized and directed to conduct the affairs of
the Issuer Trust and to
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operate the Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
and will not be taxable as a corporation for the United States federal income
tax purposes and so that the Junior Subordinated Debentures will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Property Trustee, the Administrators, and the Holders of
Common Securities are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust, or this Trust Agreement, that the
Property Trustee, the Administrators, and Holders of Common Securities determine
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the Holders of the Outstanding Preferred Securities. In no event shall the
Administrators or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this section that results from a change
in law or regulations or in the interpretation thereof.
Section 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust
Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Issuer Trust and shall be held and administered by the Property Trustee (in its
capacity as such) for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including Distributions of Additional
Amounts) will be made on the Trust Securities at the rate and on the dates that
payments of interest (including payments of Additional Interest, as defined in
the Indenture) are made on the Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative
and will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from _________, 1999, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the
Indenture, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on ____________,
1999. If any date on which a Distribution is otherwise payable on the
Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next
succeeding calendar year, payment of such Distributions shall be made
on the immediately preceding Business Day, in either case with the same
force and effect as if made on the date on which such payment was
originally payable (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of ____% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period
less than a full Distribution period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable for each
full Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the Indenture to
defer the payment of interest on the Junior Subordinated Debentures at
any time and from time to time for a period not exceeding 20
consecutive quarterly periods (an "Extension Period"), provided that no
Extension Period may extend beyond __________, 2029. As a consequence
of any such deferral, quarterly Distributions on the Trust Securities
by the Issuer Trust will also be deferred (and the amount of
Distributions to which Holders of the Trust Securities are entitled
will accumulate additional Distributions thereon at the rate per annum
of ____% per annum, compounded quarterly) from the relevant payment
date for such Distributions, computed on the basis of a 360-day year of
twelve 30-day months and the actual days
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elapsed in a partial month in such period. Additional Distributions
payable for each full Distribution period will be computed by dividing
the rate per annum by four. The term "Distributions" as used in Section
4.1 shall include any such additional Distributions provided pursuant
to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Issuer Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the 15th day of
March, June, September or December (whether or not a Business Day).
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Junior Subordinated Debentures, the Issuer Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date, or as soon as
practicable thereafter, that notice of such actual Redemption Price is
received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
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(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP"
numbers, and the Property Trustee shall indicate the "CUSIP" numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Issuer Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Preferred Securities held in global form, irrevocably deposit with
the Clearing Agency for such Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Owners of the Preferred Securities. With respect to
Preferred Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Preferred Securities upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required,
then, upon the date of such deposit, all rights of Holders holding Trust
Securities so called for redemption will cease, except the right of such Holders
to receive the Redemption Price and any Distributions payable in respect of the
Trust Securities on or prior to the Redemption Date, but without interest, and
such Trust Securities will cease to be Outstanding. In the event that any date
on which any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Issuer Trust or by the Depositor pursuant to
the Guarantee Agreement, Distributions on such Trust Securities will continue to
accumulate, as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
applicable Redemption Price is actually paid, in which case the actual
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payment date will be the date fixed for redemption for purposes of calculating
the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the particular
Preferred Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption in such a manner as
the Property Trustee shall deem fair and appropriate.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution in
respect of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(e), pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of such Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date any Event of
Default resulting from a Debenture Event of Default in Section 5.1(a) or 5.1(b)
of the Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts, if applicable) on, or Redemption
Price of, or Liquidation Distribution in respect of, any Common Security, and no
other payment on account of the redemption, liquidation, or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or, in the case of payment of the Redemption
Price, the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including any Additional
Amounts, if applicable) on, or the Redemption Price of, or Liquidation
Distribution in respect of Preferred Securities then due and payable. The
existence of an Event of Default does not entitle the Holders of Preferred
Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effects of all such Events of Default with respect to the
Preferred Securities have been cured, waived, or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived, or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holder of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check mailed
to the address of the Person entitled
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thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which will credit
the relevant accounts on the applicable Distribution Dates. Payments of
Distributions to Holders of $1,000,000 or more in aggregate Liquidation Amount
of Preferred Securities may be made by wire transfer of immediately available
funds upon written request of such Holder of Preferred Securities to the
Securities Registrar not later than 15 calendar days prior to the date on which
the Distribution is payable. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee
and the Holder of the Common Securities.
Section 4.5. Tax Returns and Reports.
(a) The Administrators shall prepare and file (or cause to be prepared
and filed), at the Depositor's expense, all United States federal, state, and
local tax and information returns and reports required to be filed by or in
respect of the Issuer Trust. In this regard, the Administrators shall (i)
prepare and file (or cause to be prepared and filed) all Internal Revenue
Service forms required to be filed in respect of the Issuer Trust in each
taxable year of the Issuer Trust and (ii) prepare and furnish (or cause to be
prepared and furnished) to each Holder all Internal Revenue Service forms
required to be provided by the Issuer Trust. The Administrators shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Issuer Trustees and the
Administrators shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Holders under the Trust Securities.
(b) On or before December 15 of each year during which any Preferred
Securities are outstanding, the Administrators shall furnish to the Paying Agent
such information as may be reasonably requested by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code. Such information shall include the amount of original
issue discount includible in income for each outstanding Preferred Security
during such year.
Section 4.6. Payment of Taxes; Duties, Etc. of the Issuer Trust.
Upon receipt under the Junior Subordinated Debentures of Additional
Sums, the Property Trustee, at the written direction of an Administrator or the
Depositor, shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer Trust by
the United States or any other taxing authority.
Section 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or any
Owner related thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 5.13 of this Trust Agreement.
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Section 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7(c) of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Until the issuance of the Trust Securities, and at any time during
which no Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner of the Issuer Trust.
Section 5.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be executed on behalf of
the Issuer Trust by manual or facsimile signature of at least one Administrator,
except as provided in Section 5.3. Trust Securities Certificates bearing the
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall be validly
issued and entitled to the benefits of this Trust Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the delivery of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities Certificates. A
transferee of a Trust Securities Certificate shall become a Holder, and shall be
entitled to the rights and subject to the obligations of a Holder hereunder,
upon due registration of such Trust Securities Certificate in such transferee's
name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more fully registered Global Preferred
Securities Certificates which will be deposited with or on behalf of Cede as the
Depositary's nominee and registered in the name of Cede as the Depositary's
nominee. Unless and until it is exchangeable in whole or in part for the
Preferred Securities in definitive form, a global security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
On the Closing Date, and on the Option Closing Date if applicable, an
Administrator shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.4 and 2.5, as the case may be, to
be executed on behalf of the Issuer Trust and delivered to the Property Trustee
and upon such delivery the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities Certificates upon the
written
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order of the Issuer Trust, executed by an Administrator thereof, without further
corporate action by the Issuer Trust, in authorized denominations, and whereupon
the Trust Securities evidenced by such Trust Securities Certificates shall be
duly and validly issued undivided beneficial interests in the assets of the
Issuer Trust and entitled to the benefits of this Trust Agreement.
Section 5.4. Global Preferred Security.
(a) Any Global Preferred Security issued under this Trust Agreement
shall be registered in the name of the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Preferred Security shall
constitute a single Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, a
Global Preferred Security may not be exchanged in whole or in part for Preferred
Securities registered, and no transfer of the Global Preferred Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Preferred Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Depositor and the Issuer Trustees in
writing that such Clearing Agency is no longer willing or able to properly
discharge its responsibilities as Clearing Agency with respect to such Global
Preferred Security, and the Depositor is unable to locate a qualified successor
within 90 days of receipt of such notice from the Depositary, (ii) the Depositor
at its option advises the Depositary in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) there shall have
occurred and be continuing an Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in part for
a beneficial interest in a Global Preferred Security, then either (i) such
Global Preferred Security shall be so surrendered for exchange or cancellation
as provided in this Article V or (ii) the Liquidation Amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or cancelled, or equal to the Liquidation Amount of such other
Preferred Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Security Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the Property Trustee shall, subject to
Section 5.4(b) and as otherwise provided in this Article V, authenticate and
deliver and an Administrator shall execute any Preferred Securities issuable in
exchange for such Global Preferred Security (or any portion thereof) in
accordance with the instructions of the Clearing Agency. The Property Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Preferred Security registered, executed, authenticated, and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Preferred Security or any portion thereof, whether pursuant to this
Article V or Article IV or otherwise, shall be executed, authenticated and
delivered in the form of, and shall be, a Global Preferred Security, unless such
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Global Preferred Security is registered in the name of a Person other than the
Clearing Agency for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of a
Global Preferred Security, shall be considered the Holder of the Preferred
Securities represented by such Global Preferred Security for all purposes under
this Trust Agreement and the Preferred Securities, and owners of beneficial
interests in such Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures and, except as otherwise provided herein, shall not
be entitled to receive physical delivery of any such Preferred Securities in
definitive form and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such Owner's beneficial interest in the Global
Preferred Security shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee, the Securities Registrar nor the
Depositor shall have any liability in respect of any transfers effected by the
Clearing Agency.
(f) The rights of Owners of beneficial interests in a Global Preferred
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Owners and the
Clearing Agency.
Section 5.5. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Preferred Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Preferred Trust Securities Certificates and transfers and exchanges of Preferred
Securities Certificates in which the registrar and transfer agent with respect
to the Preferred Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.11 in the case of Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. Such register is herein sometimes referred to as the "Securities
Register." The Property Trustee is hereby appointed "Securities Registrar" for
the purpose of registering Preferred Securities and transfers of Preferred
Securities as herein provided.
Upon surrender for registration of transfer of any Preferred Security
at the offices or agencies of the Property Trustee designated for that purpose,
an Administrator shall execute and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities of the same series of any authorized denominations of
like tenor and aggregate Liquidation Amount and bearing such legends as may be
required by this Trust Agreement.
At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such legends as may be required by this
Trust Agreement, upon surrender of the Preferred Securities to be exchanged at
such office or agency. Whenever any Preferred Securities are so surrendered for
exchange, an Administrator shall execute and the Property
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Trustee shall authenticate and deliver the Preferred Securities that the Holder
making the exchange is entitled to receive.
All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Issuer Trust,
evidencing the same interest, and entitled to the same benefits under this Trust
Agreement, as the Preferred Securities surrendered upon such transfer or
exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Preferred Securities, but the Property Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Preferred Securities.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of, or exchange any Preferred Security during a period beginning at the opening
of business 15 days before the day of selection for redemption of Preferred
Securities pursuant to Article IV and ending at the close of business on the day
of mailing of the notice of redemption, or (ii) to register the transfer of or
exchange any Preferred Security so selected for redemption in whole or in part,
except, in the case of any such Preferred Security to be redeemed in part, any
portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Trust Agreement. Any transfer or purported transfer of any
Trust Security not made in accordance with this Trust Agreement shall be null
and void.
(i) Non-Global Security to Non-Global Security. A Trust
Security that is not a Global Preferred Security may be transferred, in
whole or in part, to a Person who takes delivery in the form of another
Trust Security that is not a Global Preferred Security as provided in
Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
Preferred Securities shall be freely transferable.
(iii) Exchanges Between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred Security that is
not a Global Preferred Security as provided in Section 5.4.
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Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss, or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser
or a protected purchaser, the Administrators, or any one of them, on behalf of
the Issuer Trust shall execute and make available for delivery, and the Property
Trustee shall authenticate, in exchange for or in lieu of any such mutilated,
destroyed, lost, or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Trust Securities Certificate, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.7. Persons Deemed Holders.
The Issuer Trustees, the Administrators, the Securities Registrar, or
the Depositor shall treat the Person in whose name any Trust Securities are
registered in the Securities Register as the owner of such Trust Securities for
the purpose of receiving Distributions and for all other purposes whatsoever,
and none of the Issuer Trustees, the Administrators, the Securities Registrar
nor the Depositor shall be bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, or the Administrators accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Office for such purposes. The Property Trustee shall give prompt
written notice to the Depositor, the Administrators and the Holders of any
change in the location of the Securities Register or any such office or agency.
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Section 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent appointed by the Property
Trustee, or any additional Paying Agent appointed by the Administrators, shall
execute and deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Property Trustee. The provisions of Sections
8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Trust Agreement to the Paying Agent shall include any co-paying agent chosen by
the Property Trustee unless the context requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor.
On the Closing Date, and on the Option Closing Date if applicable, the
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. Neither the Depositor nor any successor Holder of the Common
Securities may transfer less than all of the Common Securities, and the
Depositor or any successor Holder may transfer the Common Securities only (a) in
connection with a consolidation or merger of the Depositor into another
corporation or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.1 of the Indenture, or (b) a transfer to an Affiliate of the Depositor
in compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws). To the fullest extent permitted by law, any
other attempted transfer of the Common Securities shall be void. The
Administrators shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO A SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE OF THE
DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT."
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Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Administrators and
the Property Trustee shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13. Rights of Holders.
(a) The legal title to all Trust Property shall be vested at all times
in the Issuer Trust and shall be held and administered by the Property Trustee
(in its capacity as such) in accordance with Section 2.9, and the Holders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Issuer Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits,
or rights of the Issuer Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Holders against payment of the
purchase price therefor will be validly issued, fully paid and nonassessable
undivided beneficial interests in the Trust Property. Subject to Section 4.8
hereof, the Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails, or the holders
of not less than 25% in principal amount of the outstanding Junior Subordinated
Debentures fail, to declare the principal of all of the Junior Subordinated
Debentures to be immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Preferred Securities then Outstanding shall have such
right to make such declaration by a notice in writing to the Property Trustee,
the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated 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, the Holders of a Majority in Liquidation Amount of
the Preferred Securities, by written notice to the Property Trustee, the
Depositor, and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all of
the Junior Subordinated Debentures,
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(B) any accrued Additional Interest on all of the
Junior Subordinated Debentures,
(C) the principal of (and premium, if any, on) any
Junior Subordinated Debentures which have become due otherwise
than by such declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the Junior
Subordinated Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment of the principal of
the Junior Subordinated Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of
the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Junior Subordinated Debentures affected thereby. No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Global Preferred
Securities, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which 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 which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a
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Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of the
Indenture, any Holder of Preferred Securities shall have the right to institute
a proceeding directly against the Depositor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of the principal amount of
or interest on Junior Subordinated Debentures having an aggregate principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in Sections 5.13(b) and
5.13(c) of this Trust Agreement, the Holders of Preferred Securities shall have
no right to exercise directly any right or remedy available to the holders of,
or in respect of, the Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation,
and management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Trust
Securities Certificates be construed so as to constitute the Holders from time
to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by the
Property Trustee on behalf of the Issuer Trust, the Property Trustee shall not
(i) direct the time, method, and place of conducting any proceeding for any
remedy available to the Property Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Junior Subordinated
Debentures, (ii) waive any past default that may be waived under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Junior Subordinated Debentures shall be due and
payable, or (iv) consent to any amendment, modification, or termination of the
Indenture or the Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the Holders of
at least a Majority in Liquidation Amount of the Preferred Securities; provided,
however, that where a consent under the Indenture would require the consent of
each holder of Junior Subordinated Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Junior Subordinated Debentures.
In addition to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that such action will not cause the Issuer Trust
to be taxable as a corporation for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material
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respect the interests, powers, preferences, or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution of the Issuer Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding Trust Securities as a
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, it would
cause the Issuer Trust to be taxable as a corporation for United States federal
income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place, and
purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 10.8 to each Holder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.3. Meetings of Holders.
(a) No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of Holders to vote on any matter upon the
written request of the Holders of record of 25% of the aggregate Liquidation
Amount of the Preferred Securities and the Administrators or the Property
Trustee may, at any time in their discretion, call a meeting of Holders of
Preferred Securities to vote on any matters as to which Holders are entitled to
vote.
(b) Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or represented by proxy, shall
constitute a quorum at any meeting of Holders of Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by the
Holders of record present, in person or by proxy, holding Preferred Securities
representing at least a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of Preferred Securities,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.4. Voting Rights.
Holders shall be entitled to one vote for each $___ of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
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Section 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Property Trustee, or with such other officer
or agent of the Issuer Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any other provision of this
Trust Agreement) shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators (or the Property Trustee if the Administrators are
unable or unwilling to act) may from time to time fix a date, not more than 90
days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, or other action provided or permitted by this Trust Agreement to be
given, made, or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Property Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
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Agreement and (subject to Section 8.1) conclusive in favor of the Issuer
Trustees, if made in the manner provided in this Section 6.8.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Issuer Trustee or Administrator receiving the same
deems sufficient.
(c) The ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Trust Security shall bind every future
Holder of the same Trust Security and the Holder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted, or suffered to be done by the
Issuer Trustees, the Administrators, or the Issuer Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
(f) If any dispute shall arise among the Holders, the Administrators or
the Issuer Trustees with respect to the authenticity, validity or binding nature
of any request, demand, authorization, direction, consent, waiver or other Act
of such Holder or Issuer Trustee under this Article VI, then the determination
of such matter by the Property Trustee shall be conclusive with respect to such
matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Issuer Trust shall be open to inspection by Holders during
normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee (and any successors
thereto at the time of their appointment), each severally on behalf of and as to
itself, hereby represents and warrants for the benefit of the Depositor and the
Holders that:
(a) The Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of New York, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of this Trust Agreement.
(b) The execution, delivery, and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee; and this Trust Agreement has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid,
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of this Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Time of Delivery, the Property Trustee has not knowingly
created any Liens or encumbrances on the Trust Securities.
(e) No consent, approval, or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for the
execution, delivery, or performance by the Property Trustee, of this Trust
Agreement.
(f) The Delaware Trustee is duly organized, validly existing, and in
good standing 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, the Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee; and this Trust Agreement has been duly
executed and delivered by the Delaware Trustee, and 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' right
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
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(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any state or Federal banking authority is required for the execution,
delivery, or performance by the Delaware Trustee, of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
Section 7.2. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, and, subject to payment therefor, issued and delivered by the
Issuer Trustees pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement, and the Holders will be, as of each
such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under
the laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by either the Property
Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require the Issuer Trustees or the
Administrators 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 they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it or them. Whether or not
therein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Issuer Trustees or the Administrators shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or the Issuer Trustees from liability for his or its own negligent
action, his or its own negligent failure to act, or his or its own willful
misconduct. To the extent that, at law or in equity, an Issuer Trustee or
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Administrator has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to the Issuer
Trust or to any Holder for such Issuer Trustee's or Administrator's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Issuer Trustees and Administrators otherwise existing at law or in equity, are
agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by his or its acceptance of a Trust Security, agrees that he or it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it or him as herein provided and that neither the
Issuer Trustees nor the Administrators are personally liable to it or him for
any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not limit
the liability of the Issuer Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13 of the Indenture), the Property Trustee shall enforce this Trust
Agreement for the benefit of the Holders and shall exercise such of the rights
and powers vested in it by this Trust Agreement, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement (including pursuant to Section 10.10),
and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Trust Agreement (including pursuant to
Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
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furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to deal with
such Property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of any other
Issuer Trustee, the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall either Administrator be liable for the
default or misconduct of any other Administrator, the Issuer Trustees or the
Depositor.
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Section 8.2. Certain Notices.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.8, notice of such Event of Default to the Holders and the
Administrators, unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders and the Administrators, unless such exercise shall
have been revoked.
(c) In the event the Property Trustee receives notice of the
Depositor's exercise of its right to shorten the stated maturity of the Junior
Subordinated Debentures as provided in Section 3.16 of the Indenture, the
Property Trustee shall give notice of such shortening of the stated maturity to
the Holders at least 30 but not more than 60 days before the effective date
thereof.
Section 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken suffered or
omitted by it hereunder in good faith and in reliance thereon and in accordance
with such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
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(e) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee security or indemnity
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 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;
(f) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions; and
(i) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any
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responsibility for their correctness. The Issuer Trustees and the Administrators
shall not be accountable for the use or application by the Depositor of the
proceeds of the Junior Subordinated Debentures.
Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, the Administrators, any Issuer Trustee or any other agent of any
Issuer Trustee or the Issuer Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13, may otherwise deal with the Issuer Trust with the same rights it would
have if it were not an Administrator, Issuer Trustee or such other agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Issuer Trustees and the Administrators upon
request for all reasonable expenses, disbursements, and advances incurred or
made by the Issuer Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation, expenses and disbursements of
its agents and counsel), except any such expense, disbursement, or advance as
may be attributable to the Issuer Trustees' bad faith, negligence or willful
misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax (excluding income taxes, other than
taxes referred to in Sections 4.5 and 4.6 hereunder), penalty, expense or claim
of any kind or nature whatsoever incurred by such Indemnified Person arising out
of or in connection with the creation, operation, or dissolution of the Issuer
Trust or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Issuer Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of bad faith, negligence or
willful misconduct with respect to such acts or omissions. The indemnification
provided to an Indemnified Party in this Trust Agreement shall not be exclusive
and nothing in this Trust Agreement shall limit any indemnification for actions
taken in connection with this Trust Agreement or otherwise which may be
available or provided to such Indemnified Party under other sources.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
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No Issuer Trustee may claim any lien or charge on any Trust Property as
a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Administrator, nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees
and Administrators.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VIII. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder.
Each Administrator shall be either a natural person who is at least 21 years of
age or a legal entity that shall act through one or more persons authorized to
bind that entity. An employee, officer, or Affiliate of the Depositor may serve
as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
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Section 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
(a) Unless an Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section 8.9. Any co-trustee
or separate trustee appointed pursuant to this Section 8.9 shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
(b) Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Property Trustees specified hereunder, shall be
exercised, solely by the Property Trustee and not by such co-trustee or separate
trustee.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee and such co-
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trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred and
is continuing, the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section
8.9.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article VIII shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
(b) Subject to Section 8.10(a), a Relevant Trustee may resign at any
time by giving written notice thereof to the Holders. The Relevant Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements its expenses and charges to serve as the successor
Issuer Trustee on a form provided by the Administrators, and selecting the
Person who agrees to the lowest expenses and charges, subject to the prior
consent of the Depositor which consent shall not be unreasonably withheld. If
the instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Issuer Trust, any court of competent jurisdiction for the
appointment of a successor Issuer Trustee.
(c) The Property Trustee or the Delaware Trustee may be removed at any
time by Act of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, delivered
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to the Relevant Trustee (in its individual capacity and on behalf of the Issuer
Trust) (i) for cause, or (ii) if a Debenture Event of Default shall have
occurred and be continuing at any time.
(d) If a resigning Relevant Trustee shall fail to appoint a successor,
or if a Relevant Trustee shall be removed or become incapable of acting as
Issuer Trustee, or if any vacancy shall occur in the office of any Issuer
Trustee for any cause, the Holders of the Preferred Securities, by Act of the
Holders of record of not less than 25% aggregate Liquidation Amount of the
Preferred Securities then Outstanding delivered to such Relevant Trustee, shall
promptly appoint a successor Issuer Trustee or Trustees, and such successor
Issuer Trustee shall comply with the applicable requirements of Section 8.11. If
no successor Issuer Trustee shall have been so appointed by the Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.11, any Holder, on behalf of himself and all others similarly situated, or any
other Issuer Trustee, may petition any court in the State of Delaware for the
appointment of a successor Issuer Trustee.
(e) The Property Trustee shall give notice of each resignation and each
removal of a Relevant Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and to the Administrators. Each notice shall include the name of
the Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor in each case being a Person who
satisfies the eligibility requirement for Delaware Trustee set forth in Section
8.7).
Section 8.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Issuer Trustee,
the retiring Relevant Trustee and each such successor Issuer Trustee with
respect to the Trust Securities shall execute, acknowledge and deliver an
instrument wherein each successor Issuer Trustee shall accept such appointment
and which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Issuer Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Issuer Trust, and upon the execution and
delivery of such instrument the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Issuer Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the Relevant
Trustee; but, on request of the Issuer Trust or any successor Issuer Trustee
such Relevant Trustee shall duly assign, transfer and deliver to such successor
Issuer Trustee all Trust Property, all proceeds thereof and money held by such
Relevant Trustee hereunder with respect to the Trust Securities and the Issuer
Trust.
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(b) Upon request of any such successor Issuer Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Issuer Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
(c) No successor Issuer Trustee shall accept its appointment unless at
the time of such acceptance such successor Issuer Trustee shall be qualified and
eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon Junior Subordinated Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor) as is required by the Trust
Indenture Act.
Section 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition, or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each
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Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.15. Reports by Property Trustee.
(a) Within 60 days of January 31 of each year commencing with January
31, 2000, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding January 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder
which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto as set forth in Section 10.10 of
this Trust Agreement.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
Section 8.16. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act, as set forth in Section 10.10 of this Trust Agreement. The Depositor and
the Administrators shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all the terms and covenants
applicable to such Person hereunder.
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Section 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act as
set forth in Section 10.10 of this Trust Agreement. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
Section 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which event the number of
Issuer Trustees shall be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to dissolve, terminate or annul the Issuer Trust or terminate this Trust
Agreement.
Section 8.19. 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 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing.
(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 Issuer 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 this Trust Agreement.
Section 8.20. Appointment of Administrators.
(a) The Administrators (other than the initial Administrators) shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common
Securities and all Administrators (including the initial Administrators) may be
removed by the Holders of a Majority in Liquidation Amount of the Common
Securities or may resign at any time. Each Administrator shall sign an agreement
agreeing to comply with the terms of this Trust Agreement. If at any time there
is no Administrator, the Property Trustee or any Holder who has been a Holder of
Trust Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
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(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.20, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Trust Agreement),
shall have all the powers granted to the Administrators and shall discharge all
the duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrator or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of a Majority in
Liquidation Amount of the Common Securities, incompetent, or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by the
remaining Administrators, if there were at least two of them prior to such
vacancy and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor in each case being a
Person who satisfies the eligibility requirement for Administrators or Delaware
Trustee, as the case may be, set forth in Section 8.7).
(d) Except as otherwise provided in this Trust Agreement or by
applicable law, any one Administrator may execute any document or otherwise take
any action which the Administrators are authorized to take under this Trust
Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on ___________, 2030 (the "Expiration Date").
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event," upon the occurrence of which the Issuer Trust shall
dissolve:
(a) the occurrence of any Bankruptcy Event with respect to the
Depositor, unless the Depositor shall transfer the Common Securities as provided
by Section 5.11, in which case this provision shall refer instead to any
Bankruptcy Event with respect to the successor Holder of the Common Securities;
(b) delivery of the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer Trust and,
after satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to distribute the Junior Subordinated Debentures to Holders
in exchange for the Preferred Securities (which direction, subject to Section
9.4(a), is optional and wholly within the discretion of the Holder of the Common
Securities);
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(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrators and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Issuer Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, (b) the
payment of any expenses owed by the Issuer Trust, (c) the discharge of all
administrative duties of the Administrators, including the performance of any
tax reporting obligations with respect to the Issuer Trust or the Holders, and
(d) the filing of a certificate of cancellation with the Delaware Secretary of
State pursuant to Section 3810 of the Delaware Business Trust Act.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Junior Subordinated Debentures, subject to Section 9.4(d). Notice
of liquidation shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not later than 15 nor more than 45 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Debentures;
and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debentures, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrators or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the
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appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Junior Subordinated
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency for the Preferred Securities or its
nominee, as the registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution with respect to Preferred Securities held by the Clearing Agency or
its nominee, and (iii) any Trust Securities Certificates not held by the
Clearing Agency for the Preferred Securities or its nominee as specified in
clause (ii) above will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the stated Liquidation Amount of the Trust
Securities represented thereby and bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid Distributions on such Trust
Securities until such certificates are presented to the Securities Registrar for
transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Junior Subordinated Debentures is
not practical, or if any Early Termination Event specified in clause (c) of
Section 9.2 occurs, the Trust Property shall be liquidated, and the Issuer Trust
shall be liquidated by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution of the Issuer
Trust, Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount equal to
the aggregate of the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Issuer Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by the Issuer Trust
on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holders of the Common Securities will be entitled to
receive Liquidation Distributions upon any such liquidation pro rata (determined
as aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities as provided in Section 4.3.
(e) Following the dissolution of the Issuer Trust and after the
completion of the winding up of the affairs of the Issuer Trust, one of the
Issuer Trustees shall file a certificate of cancellation with the Delaware
Secretary of State.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
and Section 9.4. At the request of the Holders of the Common Securities, and
with the consent of the Holders of at least a Majority in Liquidation
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Amount of the Preferred Securities but without the consent of the Delaware
Trustee or the Property Trustee, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided, however, that (a) such successor entity
either (i) expressly assumes all of the obligations of the Issuer Trust with
respect to the Securities or (ii) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities have the same
priority as the Preferred Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (b) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Junior Subordinated Debentures, (c) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization if the
Preferred Securities were rated by any nationally recognized statistical rating
organization immediately prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, (d) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, (e)
such successor entity has a purpose substantially identical to that of the
Issuer Trust, (f) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Issuer Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (i) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (ii) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act, and (g) the Depositor or
any permitted transferee to whom it has transferred the Common Securities
hereunder owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable as a corporation for United States federal income tax
purposes. Any merger or similar agreement shall be executed by the
Administrators on behalf of the Issuer Trust.
53
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement or dissolve, terminate or annul the Issuer Trust, nor entitle the
legal representatives or heirs of such Person or any Holder for such Person, to
claim an accounting, take any action or bring any proceeding in any court for a
partition or winding-up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrators or the Holders of a Majority in Liquidation
Amount of the Common Securities, without the consent of any Holder of the
Preferred Securities, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement; provided, however, that such amendment shall not adversely
affect in any material respect the interests of any Holder or (ii) to modify,
eliminate, or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Issuer Trust will not be taxable as a
corporation for United States federal income tax purposes at any time that any
Trust Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an "investment company" under the Investment Company
Act.
(b) Except as provided in Section 6.1(c) or Section 10.2(c), any
provision of this Trust Agreement may be amended by the Property Trustee, the
Administrators, and the Holders of a Majority in Liquidation Amount of the
Common Securities with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Preferred Securities and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not cause the Issuer Trust to be taxable as a corporation for
United States federal income tax purposes or affect the Issuer Trust's exemption
from status of an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date. Notwithstanding any other provision herein,
without the unanimous consent of
54
<PAGE>
the Holders (such consent being obtained in accordance with Section 6.3 or 6.6),
this Section 10.2(c) may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or be taxable as a corporation for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
(h) Any amendments to this Trust Agreement pursuant to Section 10.2(a)
shall become effective when notice of such amendment is given to the Holders of
the Trust Securities.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES, AND THE
ADMINISTRATORS WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next
55
<PAGE>
succeeding day that is a Business Day (except as otherwise provided in Sections
4.2(d)), except that, if such Business Day is in the next succeeding calendar
year, payment on any Trust Security shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as though made on the
date fixed for such payment, and no Distributions shall accumulate on such
unpaid amount for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust, the Administrators,
and any Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Holder or the Depositor may be given or served in writing by
deposit thereof, first class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (i) in the case of
a Holder of Preferred Securities, to such Holder as such Holder's name and
address may appear on the Securities Register; and (ii) in the case of the
Holder of Common Securities or the Depositor, to Gold Banc Corporation, Inc.,
11301 Nall Avenue, Leawood, Kansas 66211 Attention: Office of the Secretary,
facsimile no.: (913) 451-8004 or to such other address as may be specified in a
written notice by the Depositor to the Property Trustee. Such notice, demand or
other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
(b) Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Issuer Trust, the Property Trustee, the Delaware Trustee, the
Administrators, or the Issuer Trust shall be given in writing addressed (until
another address is published by the Issuer Trust) as follows: (i) with respect
to the Property Trustee to Bankers Trust Company, Four Albany Street, 4th Floor,
New York, NY 10006, Attention: Corporate Trust and Agency Group Corporate Market
Services; (ii) with respect to the Delaware Trustee to Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Montgomery Building, 1101 Center Road, Suite
200, Wilmington, Delaware, 19805-1266, Attention: Lisa Wilkins, and (iii) with
respect to the Administrators, to them at the address above for notices to the
Depositor, marked "Attention: Office of the Secretary." Such notice,
56
<PAGE>
demand or other communication to or upon the Issuer Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee, or such
Administrator.
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX, they shall
not file, or join in the filing of, a petition against the Issuer Trust under
any bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Issuer Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.9, the Property Trustee agrees, for
the benefit of Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Issuer Trust or the commencement of
such action and raise the defense that the Depositor has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust
may assert. If any Issuer Trustee or Administrator takes action in violation of
this Section 10.9, the Depositor agrees, for the benefit of the Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by such Person against
the Depositor or the commencement of such action and raise the defense that such
Person has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the
Depositor or the Issuer Trust may assert. The provisions of this Section 10.9
shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is
subject to the provisions of the Trust Indenture Act that are required to be a
part of this Trust Agreement and shall, to the extent applicable, be governed by
such provisions; (ii) if and to the extent that any provision of this Trust
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control; (iii) for purposes of this Trust Agreement, the Property Trustee, to
the extent permitted by applicable law and/or the rules and regulations of the
Commission, shall be the only Issuer Trustee which is a trustee for the purposes
of the Trust Indenture Act; and (iv) the application of the Trust Indenture Act
to this Trust Agreement shall not affect the nature of the Preferred Securities
and the Common Securities as equity securities representing undivided beneficial
interests in the assets of the Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the Depositor
and the Administrators on behalf of the Issuer Trust shall provide the Property
Trustee with such information as is required under Section 312(a) of the Trust
Indenture Act at the times and in the manner provided in Section 312(a) and (ii)
the Property Trustee shall comply with its obligations under Sections 310(b),
311 and 312(b) of the Trust Indenture Act.
57
<PAGE>
(c) Reports by the Property Trustee. Within 60 days after January 31 of
each year, commencing January 31, 2000, the Property Trustee shall provide to
the Holders of the Trust Securities such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form, in the manner and at the times
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
(d) Periodic Reports to Property Trustee. Each of the Depositor and the
Administrators on behalf of the Issuer Trust shall provide to the Property
Trustee, the Commission and the Holders of the Trust Securities, as applicable,
such documents, reports and information as required by Section 314(a)(1)-(3) (if
any) of the Trust Indenture Act and the compliance certificates required by
Section 314(a)(4) and (c) of the Trust Indenture Act (provided that any
certificate to be provided pursuant to Section 314(a)(4) of the Trust Indenture
Act shall be provided within 120 days of the end of each fiscal year of the
Issuer Trust).
(e) Evidence of Compliance with Conditions Precedent. Each of the
Depositor and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Trust Agreement which relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given pursuant to Section 314(c) shall comply with
Section 314(e) of the Trust Indenture Act.
(f) Disclosure of Information. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Property Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
58
<PAGE>
Section 10.12. Counterparts
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Issuer Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature paper.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
59
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Trust Agreement to be duly executed as of the day and year first above written.
GOLD BANC CORPORATION, INC.,
as Depositor
By:
-------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:
-------------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee and not
in its individual capacity
By:
-------------------------------------
Name:
Title:
Subscribed to and Accepted by, as the Initial Administrators:
- ------------------------------
Brian J. Ruisinger
- ------------------------------
Steven E. Rector
60
<PAGE>
EXHIBIT A
---------
[CERTIFICATE OF TRUST FILED WITH DELAWARE SECRETARY OF STATE]
<PAGE>
EXHIBIT B
---------
[FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
<PAGE>
EXHIBIT C
---------
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A
SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
GBCI Capital Trust II
____% Common Securities
(liquidation amount $____ per Common Security)
GBCI Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Issuer Trust"), hereby certifies that Gold
Banc Corporation, Inc. (the "Holder") is the registered owner of _________ (___)
common securities of the Issuer Trust representing undivided beneficial interest
in the assets of the Issuer Trust and designated the GBCI Capital Trust II ____%
Common Securities (liquidation amount $____ per Common Security) (the "Common
Securities"). Except in accordance with Section 5.11 of the Trust Agreement (as
defined below), the Common Securities are not transferable and any attempted
transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of ________, 1999, as the same may be amended from
time to time (the "Trust Agreement") among Gold Banc Corporation, Inc., as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust (Delaware),
as Delaware Trustee, and the Holders of Trust Securities, including the
designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
<PAGE>
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this ___ day of ______________, 1999.
GBCI CAPITAL TRUST II
By:
-----------------------------
Name:
Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
---------------------------
Name:
Signatory Officer
2
<PAGE>
EXHIBIT D
---------
[IF THE PREFERRED SECURITY CERTIFICATE IS TO BE A GLOBAL PREFERRED
SECURITY CERTIFICATE, INSERT - This Preferred Security Certificate is a Global
Preferred Security Certificate within the meaning of the Trust Agreement
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Preferred Security Certificate is exchangeable for
Preferred Security Certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to GBCI Capital Trust II or its agent for registration of
transfer, exchange or payment, and any Preferred Security Certificate issued is
registered in the name of such nominee as is requested by an authorized
representative of DTC (and any payment is made to such entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, has an interest herein.]
<PAGE>
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-__
CUSIP NO. ________________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
GBCI CAPITAL TRUST II
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $____ PER PREFERRED SECURITY)
GBCI Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
_______________ (the "Holder") is the registered owner of $___________ aggregate
liquidation amount of preferred securities of the Issuer Trust representing a
preferred undivided beneficial interest in the assets of the Issuer Trust and
designated the GBCI Capital Trust II ____% Preferred Securities (liquidation
amount $____ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and the records of the Issuer Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Issuer Trust,
dated as of ________, 1999, as the same may be amended from time to time (the
"Trust Agreement"), among Gold Banc Corporation, Inc. as Depositor, Bankers
Trust Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and the Holders of Trust Securities, including the designation of the
terms of the Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by Gold Banc
Corporation, Inc., a Kansas corporation, and Bankers Trust Company, as Guarantee
Trustee, dated as of ________, 1999 , as the same may be amended from time to
time (the "Guarantee Agreement"), to the extent provided therein. The Issuer
Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement to
the Holder without charge upon written request to the Issuer Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _______ day of ____________, 1999.
GBCI CAPITAL TRUST II
By:
------------------------------
Name:
Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
------------------------------
Name:
Authorized Signatory
2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
- ------------------------------------------------------------------------------
(Insert assignee's name and social security or tax
identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date:
-----------------
Signature:
----------------------------------
(Sign exactly as your name appears on
the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
<PAGE>
Exhibit 4(e)
- ------------------------------------------------------------------------------
GUARANTEE AGREEMENT
Between
GOLD BANC CORPORATION, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Guarantee Trustee)
dated as of
________, 1999
- ------------------------------------------------------------------------------
<PAGE>
GBCI CAPITAL TRUST II
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Guarantee Agreement
Act Section Section
- --------------- -------------------
<S> <C>
Section 310 (a)(1)..............................................4.1(a)
(a)(2)..............................................4.1(a)
(a)(3)..............................................Not Applicable
(a)(4)..............................................Not Applicable
(b).................................................2.8, 4.1(c)
Section 311 (a).................................................Not Applicable
(b).................................................Not Applicable
Section 312 (a).................................................2.2(a)
(b).................................................2.2(b)
(c).................................................Not Applicable
Section 313 (a).................................................2.3
(a)(4)..............................................2.3
(b).................................................2.3
(c).................................................2.3
(d).................................................2.3
Section 314 (a).................................................2.4
(b).................................................2.4
(c)(1)..............................................2.5
(c)(2)..............................................2.5
(c)(3)..............................................2.5
(e).................................................1.1, 2.5, 3.2
Section 315 (a).................................................3.1(d)
(b).................................................2.7
(c).................................................3.1(c)
(d).................................................3.1(d)
(e).................................................Not Applicable
Section 316 (a).................................................1.1, 2.6, 5.4
(a)(1)(A)...........................................5.4
(a)(1)(B)...........................................5.4
(a)(2)..............................................Not Applicable
(b).................................................5.3
(c).................................................Not Applicable
Section 317 (a)(1)..............................................Not Applicable
(a)(2)..............................................Not Applicable
(b).................................................Not Applicable
Section 318 (a).................................................2.1
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Guarantee Agreement.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I. DEFINITIONS
Section 1.1. Definitions..........................................................2
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.....................................5
Section 2.2. List of Holders......................................................5
Section 2.3. Reports by the Guarantee Trustee.....................................6
Section 2.4. Periodic Reports to Guarantee
Trustee..............................................................6
Section 2.5. Evidence of Compliance with
Conditions Precedent.................................................6
Section 2.6. Events of Default; Waiver............................................6
Section 2.7. Event of Default; Notice.............................................6
Section 2.8. Conflicting Interests................................................7
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE
Section 3.1. Powers and Duties of the Guarantee
Trustee..............................................................7
Section 3.2. Certain Rights of Guarantee Trustee..................................9
Section 3.3. Indemnity............................................................10
Section 3.4. Expenses.............................................................10
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.......................................11
Section 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee.............................................11
ARTICLE V. GUARANTEE
Section 5.1. Guarantee............................................................12
Section 5.2. Waiver of Notice and Demand..........................................12
Section 5.3. Obligations Not Affected.............................................12
Section 5.4. Rights of Holders....................................................13
Section 5.5. Guarantee of Payment.................................................14
Section 5.6. Subrogation..........................................................14
Section 5.7. Independent Obligations..............................................14
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination........................................................14
Section 6.2. Pari Passu Guarantees................................................14
ARTICLE VII. TERMINATION
Section 7.1 Termination..........................................................15
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns...............................................15
Section 8.2. Amendments...........................................................15
Section 8.3. Notices..............................................................16
Section 8.4. Benefit..............................................................17
Section 8.5. Interpretation.......................................................17
Section 8.6. Governing Law........................................................17
Section 8.7. Counterparts.........................................................18
</TABLE>
ii
<PAGE>
GUARANTEE AGREEMENT
-------------------
THIS GUARANTEE AGREEMENT, dated as of _____, 1999 (this "Guarantee
Agreement"), is executed and delivered by GOLD BANC CORPORATION, INC., a Kansas
corporation (the "Guarantor"), having its principal office at 11301 Nall Avenue,
Leawood, Kansas, 66211 and BANKERS TRUST COMPANY, a New York banking
corporation, having its principal office at Four Albany Street, Fourth Floor,
New York, New York 10006, as trustee, for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
GBCI Capital Trust II, a Delaware statutory business trust (the "Issuer Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _____, 1999, among Gold Banc Corporation, Inc.,
as Depositor, Bankers Trust Company, as Property Trustee (the "Property
Trustee"), Bankers Trust (Delaware), as Delaware Trustee (the "Delaware
Trustee") (collectively, the "Issuer Trustees") and the Holders from time to
time of preferred undivided beneficial ownership interests in the assets of the
Issuer Trust, the Issuer Trust is issuing up to $__________ aggregate
Liquidation Amount (as defined herein) of its ____% Preferred Securities,
Liquidation Amount $___ per preferred security (the "Preferred Securities"),
representing preferred undivided beneficial ownership interests in the assets of
the Issuer Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer Trust
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust's Common Securities (as defined herein), will be used to purchase
the Junior Subordinated Debentures due ______, 2029 (as defined in the Trust
Agreement) (the "Junior Subordinated Debentures") of the Guarantor which will be
deposited with Bankers Trust Company, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, and intending to be legally bound hereby, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Preferred Securities.
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Trust Agreement as in effect on the date hereof.
"Additional Amount" has the meaning specified in the Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Delaware Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Distributions" means preferential cumulative cash distributions
accumulating from ______, 1999 and payable quarterly in arrears on March 31,
June 30, September 30, and December 31 of each year, commencing __________, 1999
at the annual rate of ____% of the Liquidation Amount.
"Event of Default" means (a) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement, or (b) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: (a) any accrued and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Preferred Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (b) the Redemption Price, with respect to the
Preferred Securities called for redemption by the Issuer Trust to the extent
that the Issuer Trust shall have funds on hand available therefor at such time,
and (c) upon a voluntary or involuntary termination, winding-up or liquidation
of the Issuer Trust, unless the Junior Subordinated
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Debentures are distributed to the Holders, the lesser of (i) the aggregate of
the Liquidation Amount and all accumulated and unpaid Distributions to the date
of payment to the extent the Issuer Trust shall have funds on hand available to
make such payment at such time and (ii) the amount of assets of the Issuer Trust
remaining available for distribution to Holders in liquidation of the Issuer
Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the preamble of this
Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of
the Issuer Trust, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
_______, 1999, between Gold Banc Corporation, Inc. and Bankers Trust Company, as
trustee, as may be modified, amended or supplemented from time to time.
"Issuer Trust" shall have the meaning specified in the preamble of this
Guarantee Agreement.
"Issuer Trustees" shall have the meaning specified in the first recital
of this Guarantee Agreement.
"Junior Subordinated Debentures" shall have the meaning specified in
the first recital of this Guarantee Agreement.
"Like Amount" means (a) with respect to a redemption of Preferred
Securities, Preferred Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, the proceeds of which will be used to
pay the Redemption Price of such Preferred Securities, (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Preferred
Securities in connection with a dissolution or liquidation of the Issuer Trust,
Junior Subordinated Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of the Holder to whom such Junior
Subordinated Debentures are distributed, and (c) with respect to any
distribution of an Additional Amount to Holders of Preferred Securities, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Preferred Securities in respect of which such distribution is
made.
"Liquidation Amount" means the stated amount of $25 per Preferred
Security.
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"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, Preferred Securities representing
more than 50% of the aggregate Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer Trust.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, Chief Executive Officer,
President or a Vice President, and by the Chief Financial Officer, Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering the
Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"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.
"Preferred Securities" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Property Trustee" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Redemption Date" means, with respect to any Preferred Security to be
redeemed, the date fixed for such redemption by or pursuant to the Trust
Agreement; provided that each Junior Subordinated Debenture Redemption Date (as
such term is defined in the Indenture) and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount of
Preferred Securities.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, principal, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of
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the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee Agreement, and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" shall have the meaning specified in the Recitals to
this Guarantee Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, or any successor statute, in each
case as amended from time to time.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required to be a part of and govern this
Guarantee Agreement, the provision of the Trust Indenture Act shall control. If
any provision of this Guarantee Agreement modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Guarantee Agreement as so modified or
excluded, as the case may be.
Section 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee:
(i) quarterly, not more than 15 days after March 15, June 15,
September 15 and December 15 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of
the Holders as of such date; and
(ii) at such other times as the Guarantee Trustee may request
in writing, within 30 days after the receipt by the Guarantor 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.
(b) The Guarantee Trustee shall comply with the requirements of Section
312(b) of the Trust Indenture Act.
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Section 2.3. Reports by the Guarantee Trustee.
Within 60 days of January 31 of each year commencing January 31, 2000,
the Guarantee Trustee shall provide to the Holders such reports, if any, as are
required by Section 313 of the Trust Indenture Act in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the Holders
such documents, reports and information, if any, as required by Section 314 of
the Trust Indenture Act and the compliance certificate required by Section 314
of the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 2.7. Event 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, notices of all Events of Default known to the Guarantee Trustee, unless
such Events of Default have been cured before the giving of such notice;
provided that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless (i) a Responsible Officer charged with the
administration of this Guarantee
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Agreement shall have received written notice of such Event of Default, or (ii) a
Responsible Officer of the Guarantee Trustee charged with administration of the
Trust Agreement shall have obtained actual knowledge thereof.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Holder exercising his or her
rights pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee hereunder. The right, title and interest of the
Guarantee Trustee, as such, hereunder shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall be obligated to perform only such duties as are specifically set forth in
this Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own bad faith or 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 Agreement (including pursuant to Section
2.1), 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 Agreement (including
pursuant to Section 2.1); 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 Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the 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 Agreement;
(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 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 direction of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement 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 or liability is not assured to it under the
terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
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Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein;
(iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee Trustee, shall
be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided,
however, that nothing herein shall relieve the Guarantee Trustee of its
obligations upon the occurrence of an Event of Default that has not
been cured or waived to exercise the rights and powers vested in the
Guarantee Trustee by this Guarantee, and to use the same degree of care
and skill in exercising such rights and powers as a reasonably prudent
person would use under the circumstances in the conduct of his own
affairs;
(vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion,
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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;
(vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any negligence or willful misconduct on the part of
any such agent or attorney appointed with due care by it hereunder.
Nothing herein shall be construed as limiting or restricting the right
of the Guarantor to bring any action directly against any agent or
attorney appointed by the Guarantee Trustee for any negligence or
willful misconduct on the part of such agent or attorney; and
(viii) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received and (C) shall be fully protected in acting in accordance with
such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee (which for
purposes of this Section 3.3 shall include its directors, officers, employees
and agents) for, and to hold the Guarantee Trustee harmless against, any loss,
liability or expense incurred without negligence, willful misconduct or bad
faith on the part of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement, including the
reasonable costs and expenses of defending against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
Section 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee Trustee
for its reasonable expenses and costs (including reasonable attorneys' or
agents' fees) incurred in connection with the performance of its duties
hereunder.
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ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(b).
(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 and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article IV shall
become effective until the acceptance of appointment by the Successor Guarantee
Trustee by written instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to Section 4.2(a), a Guarantee Trustee may resign at any
time by giving written notice thereof to the Holders. The Guarantee Trustee
shall appoint a successor by requesting from at least three Persons meeting the
eligibility requirements such Person's expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the lowest expenses
and charges. If the instrument of acceptance by the Successor Guarantee Trustee
shall not have been delivered to the Guarantee Trustee within 60 days after the
giving of such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time by Act
(within the meaning of Section 6.8 of the Trust Agreement) of the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, delivered to
the Guarantee Trustee.
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(d) If a resigning Guarantee Trustee shall fail to appoint a successor,
or if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee, or if any vacancy shall occur in the office of any Guarantee
Trustee for any cause, the Holders of the Preferred Securities, by Act of the
Holders of record of not less than 25% in aggregate Liquidation Amount of the
Preferred Securities then outstanding delivered to such Guarantee Trustee, shall
promptly appoint a successor Guarantee Trustee. If no Successor Guarantee
Trustee shall have been so appointed by the Holders of the Preferred Securities
and such appointment accepted by the Successor Guarantee Trustee, any Holder, on
behalf of himself and all others similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full on
a subordinated basis as set forth in Section 6.1 hereof to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer Trust), as and when due, regardless of any defense, right
of set-off or counterclaim which the Issuer Trust may have or assert, except the
defense of payment. 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 Trust to pay such amounts to the Holders. The
Guarantor shall give prompt written notice to the Guarantee Trustee in the event
it makes any direct payment hereunder.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer Trust;
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(b) the extension of time for the payment by the Issuer Trust of all or
any portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Junior Subordinated Debentures as so provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer Trust 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 Trust or any of the assets of
the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (a) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (c) the Holders of a Majority in Liquidation
Amount of the Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and (d) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Guarantee Trustee, the Issuer Trust or any other
Person.
13
<PAGE>
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Junior Subordinated Debentures
to Holders as provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; 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 which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Junior Subordinated Debentures, and the provisions
of Article XIII of the Indenture will apply, mutatis mutandis, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor.
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with any similar guarantee agreements issued by the Guarantor on
behalf of the holders of preferred or capital securities issued by the Issuer
Trust and with any other security, guarantee or other obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor
14
<PAGE>
under this Guarantee Agreement, including without limiting the foregoing, the
guarantee agreement between the Guarantor and the Property Trustee dated
___________, 1997.
ARTICLE VII
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (a) full payment of the Redemption Price of all Preferred
Securities, (b) the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Preferred Securities or (c) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
the Preferred Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder, and any purported assignment that is not in accordance
with these provisions shall be void.
Section 8.2. Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
15
<PAGE>
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied (confirmed by delivery of the original) or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
Facsimile No.: (913) 451-8004
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Guarantee Trustee, at
the Issuer Trust's (and the Guarantee Trustee's) address set forth below or such
other address or telecopy number or to the attention of such other Person as the
Guarantee Trustee on behalf of the Issuer Trust may give notice to the Holders:
GBCI Capital Trust II
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
Facsimile No.: (913) 451-8004
Attention: Office of the Secretary
with a copy to:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, New York 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group;
Corporate Market Services
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, New York 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
16
<PAGE>
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
17
<PAGE>
Section 8.7. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
18
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
GOLD BANC CORPORATION, INC.
as Guarantor
By:
-----------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
and not in its individual capacity
By:
-----------------------------
Name:
Title:
19
<PAGE>
Exhibit 5(a)
April 16, 1999
GBCI Capital Trust II
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
Ladies and Gentlemen:
We have acted as counsel to Gold Banc Corporation, Inc., (the "Company")
in connection with the preparation and filing by the Company and GBCI Capital
Trust II (the "Trust") of a registration statement (the "Registration
Statement") on Form S-3 under the Securities Act of 1933, as amended (the
"Act"), with respect to the offer and sale of certain of the Trust's Preferred
Securities (liquidation amount $25 per Preferred Security) (the "Preferred
Securities") and certain of the Company's Junior Subordinated Debentures (the
"Debentures") and the related Guarantee Agreement by and between the Company and
Bankers Trust Company, as trustee (the "Guarantee"). In connection therewith,
you have requested our opinion as to certain matters referred to below.
In our capacity as such counsel, we have familiarized ourselves with the
actions taken by the Company in connection with the registration of the
Debentures and the Guarantee. We have examined originals or certified copies of
other documents, including the Registration Statement and the amendment thereto,
as we have deemed relevant and necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures on original documents and the authenticity of all documents submitted
to us as originals, the conformity to original documents of all copies submitted
to us as conformed or photostatic copies, and the authenticity of the originals
of such latter documents. Our opinion is limited to the law of the State
of Kansas and the Federal law of the United States, and we do not express
any opinion herein concerning any other law.
Based upon and subject to the foregoing, we are of the opinion that, when
issued (with respect to the Debentures), or executed and delivered (with respect
to the Guarantee), as set forth in the Registration Statement, the Debentures
and the Guarantee will be the valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws relating to or affecting the enforcement of creditors' rights generally or
the rights of creditors of bank holding companies, the accounts of whose
subsidiaries are insured by the Federal Deposit Insurance Corporation, or by
general equity principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
<PAGE>
We consent to the references to this opinion and to Blackwell Peper Martin
LLP in the Prospectus included as part of the Registration Statement under the
caption "Validity of Securities," and to the inclusion of this opinion as an
exhibit to the Registration Statement.
Very Truly Yours,
/s/ Blackwell Sanders Peper Martin LLP
<PAGE>
Exhibit 8
April 16, 1999
GBCI Capital Trust II
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, Kansas 66211
Ladies and Gentlemen:
We have acted as counsel to Gold Banc Corporation, Inc. (the "Company")
and to GBCI Capital Trust II (the "Trust") in connection with the registration
statement of the Company and the Trust on Form S-3 (the "Registration
Statement"), of which a prospectus ("Prospectus") is a part, filed by the
Company and the Trust with the United States Securities and Exchange Commission
under the Securities Act of 1933, as amended. This opinion is furnished pursuant
to the requirements of Item 601(b)(8) of Regulation S-K.
For the purposes of rendering this opinion, we have reviewed and relied
upon the Registration Statement and such other documents and instruments as we
deemed necessary for the rendering of this opinion. In our examination of
relevant documents, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents to all documents submitted to us as copies, the authenticity
of such copies and the accuracy and completeness of all corporate records made
available to us by the Company and the Trust.
Based solely upon our review of such documents, and upon such information
as the Company has provided to us (which we have not attempted to verify in any
respect), and reliance upon such documents and information, we hereby adopt and
incorporate by reference the opinion set forth in the Prospectus under the
caption "Certain Federal Income Tax Consequences."
Our opinion is limited to the federal income tax matters described above
and does not address any other federal income tax considerations or any state,
local, foreign, or other tax considerations. If any of the information on which
we have relied is incorrect, or if changes in the relevant facts occur after the
date hereof, our opinion could be affected thereby.
Moreover, our opinion is based on the Internal Revenue Code of 1986, as
amended, applicable Treasury regulations promulgated thereunder, and Internal
Revenue Service rulings, procedures, and other pronouncements published by the
United States Revenue Service. These authorities are all subject to change, and
such change may be made with retroactive effect. We can give no assurance that,
after such change, our opinion would not be different. We undertake no
responsibility to update or supplement our opinion. This opinion is not binding
on
<PAGE>
GBCI Capital Trust II
Gold Banc Corporation, Inc.
April 16, 1999
Page 2
the Internal Revenue Service, and there can be no assurance, and none is hereby
given, that the Internal Revenue Service will not take a position contrary to
one or more of the positions reflected in the foregoing opinion, or that our
opinion will be upheld by the courts if challenged by the Internal Revenue
Service.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the use of our name in the Prospectus
under the caption "Certain Federal Income Tax Consequences."
Very truly yours,
/s/Blackwell Sanders Peper Martin LLP
<PAGE>
Exhibit 23(a)
ACCOUNTANTS' CONSENT
The Board of Directors
Gold Banc Corporation, Inc.
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the registration statement
filed on Form S-3.
/s/ KPMG LLP
Kansas City, Missouri
April 16, 1999
<PAGE>
EXHIBIT 25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a Identification no.)
U.S. national bank)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
Gold Banc Corporation, Inc. GBCI CAPITAL TRUST II
(Exact name of Registrant as specified (Exact name of Registrant as specified
in its charter) in its charter)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Kansas 48-1008593 DELAWARE Applied For
State or other jurisdiction of (IRS employer (State or other jurisdiction of (IRS employer
Incorporation or organization) Identification no.) Incorporation or organization) Identification no.)
11301 Nall Avenue 11301 Nall Avenue
Leawood, Kansas 66211 Leawood, Kansas 66211
(Address, including zip code (Address, including zip code
of principal executive offices) of principal executive offices)
</TABLE>
__%Preferred Securities of GBCI Capital Trust II
__% Junior Subordinated Debentures of Gold Banc Corporation
Gold Banc Corporation, Inc. Guarantee with respect to Preferred Securities
(Title of the securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated
June 19, 1997, copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on November 18, 1997. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference to
Exhibit 4 filed with Form T-1 Statement, Registration
No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of December 31, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the
April 19, 1999.
BANKERS TRUST COMPANY
By: Ednora G. Linares
--------------------------------
Ednora G. Linares
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the
April 19, 1999.
BANKERS TRUST COMPANY
By: Ednora G. Linares
-----------------
Ednora G. Linares
Assistant Vice President
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord one thousand
nine hundred and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
-----------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
--------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or re-
elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
<PAGE>
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these By-
Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
<PAGE>
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company,
<PAGE>
evidenced by a written communication signed by the Chairman of the Board, the
Chief Executive Officer or the President, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, _____________________________________, Assistant Secretary of Bankers Trust
Company, New York, New York, hereby certify that the foregoing is a complete,
true and correct copy of the By-Laws of Bankers Trust Company, and that the same
are in full force and effect at this date.
--------------------------------------
ASSISTANT SECRETARY
DATED:
---------------------------------
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
reported the amount outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
C400
---------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////
a. Noninterest-bearing balances and currency and coin (1)................. 0081 2,772,000 1.a.
b. Interest-bearing balances (2).......................................... 0071 2,497,000 1.b.
2. Securities: //////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A)............. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........... 1773 8,907,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell..... 1350 22,851,000 3.
4. Loans and lease financing receivables: //////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 21,882,000 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses.....................RCFD 3123 620,000 ////////////////// 4.b.
c. LESS: Allocated transfer risk reserve.........................RCFD 3128 0 ////////////////// 4.c.
d. Loans and leases, net of unearned income, //////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c).................... 2125 21,262,000 4.d.
5. Trading Assets (from schedule RC-D).............................................. 3545 39,983,000 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 974,000 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 80,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 97,000 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 232,000 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 278,000 10.
11. Other assets (from Schedule RC-F).......................................... 2160 4,625,000 11.
12. Total assets (sum of items 1 through 11)................................... 2170 104,558,000 12.
---------------------------
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: 0 0 6 2 3
Schedule RC--Continued
Dollar Amounts in Thousands / / / / / / / / Bil Mil Thou ____
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES / / / / / / / / / / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A RCON 2200 20,409,000 13.a.
and C from Schedule RC-E, part I)
(1) Noninterest-bearing(1)...............RCON 6631 3,124,000... / / / / / / / / / / / / / / / / / 13.a.(1)
(2) Interest-bearing.....................RCON 6636 17,285,000... / / / / / / / / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from / / / / / / / / / / / / / / / /
Schedule RC-E part II) RCON 2200 20,167,000 13.b.
(1) Noninterest-bearing..................RCFN 6631 1,781,000 / / / / / / / / / / / / / / / / 13.b.(1)
(2) Interest-bearing.....................RCFN 6636 18,386,000 / / / / / / / / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities sold under agreements to
repurchase............................................................ RCFD 2800 13,919,000 14.
15. a. Demand notes issued to the U.S. Treasury........................... RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D)........................... RCFD 3548 26,175,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases): / / / / / / / / / / / / / / /
a. With a remaining maturity of one year or less...................... RCFD 2332 5,422,000 16.a.
b. With a remaining maturity of more than one year through
three years........................................................ A547 1,766,000 16.b.
c. With a remaining maturity of more than three years................. A548 2,884,000 16.c
17. Not Applicable. / / / / / / / / / / / / / / / 17.
18. Bank's liability on acceptances executed and outstanding.............. RCFD 2920 232,000 18.
19. Subordinated notes and debentures (2)................................. RCFD 3200 984,000 19.
20. Other liabilities (from Schedule RC-G)................................ RCFD 2930 5,657,000 20.
21. Total liabilities (sum of items 13 through 20)........................ RCFD 2948 97,615,000 21.
22. Not Applicable / / / / / / / / / / / / / / /
/ / / / / / / / / / / / / / /
/ / / / / / / / / / / / / / /
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......................... RCFD 3838 1,500,000 23.
24. Common stock.......................................................... RCFD 3230 2,127,000 24.
25. Surplus (exclude all surplus related to preferred stock).............. RCFD 3839 541,000 25.
26. a. Undivided profits and capital reserves............................. RCFD 3632 3,200,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities......................................................... RCFD 8434 ( 36,000) 26.b.
27. Cumulative foreign currency translation adjustments................... RCFD 3284 ( 389,000) 27.
28. Total equity capital (sum of items 23 through 27)..................... RCFD 3210 6,943,000 28.29.
(sum of items 21 and 28).............................................. RCFD 3300 104,558,000 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external auditors as of any date during 1998
Number
----------
RCFD 6724 N/A M.1
---------------------------------
1 = Independent audit of the bank 4 = Directors' examination of
conducted in accordance the bank performed by other
with generally accepted external auditors (may be
auditing standards by a required by state chartering
certified public accounting firm authority)
which submits a report on the bank
2 = Independent audit of the 5 = Review of the bank's
bank's parent holding company financial statements by
conducted in accordance with external auditors
generally accepted auditing
standards by a certified
public accounting firm which 6 = Compilation of the bank's
submits a report on the financial statements by
consolidated holding company external auditors
(but not on the bank separately)
3 = Directors' examination of the 7 = Other audit procedures
bank conducted in (excluding tax preparation
accordance with generally work)
accepted auditing standards
by a certified public accounting 8 = No external audit work
firm (may be required by state
chartering authority)
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
