<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1999
REGISTRATION NO. 333-
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
<TABLE>
<S> <C> <C> <C>
ENTERBANK HOLDINGS, INC. EBH CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AND CO-REGISTRANT AS SPECIFIED IN CHARTERS)
DELAWARE 43-1706259 DELAWARE 51-6513837
(STATE OR OTHER JURISDICTION (IRS EMPLOYER (STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
150 NORTH MERAMEC, ST. LOUIS, MISSOURI 63105
(314) 725-5500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S AND CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
JAMES C. WAGNER,
CHIEF FINANCIAL OFFICER
ENTERBANK HOLDINGS, INC.
150 NORTH MERAMEC, ST. LOUIS, MISSOURI 63105
(314) 725-5500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
JOHN L. GILLIS, JR., ESQ. THOMAS C. ERB, ESQ.
ARMSTRONG TEASDALE LLP LEWIS, RICE & FINGERSH, L.C.
ONE METROPOLITAN SQUARE, SUITE 2600 500 NORTH BROADWAY
ST. LOUIS, MISSOURI 63102-2740 ST. LOUIS, MISSOURI 63102
(314) 621-5070 (314) 444-7600
</TABLE>
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being 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, check the following box and
list the Securities Act registration statement number of 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
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
NUMBER OF PROPOSED MAXIMUM PROPOSED AMOUNT OF
SECURITIES TO OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT (1) OFFERING PRICE(1) FEE(2)
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred Securities of EBH Capital Trust I......... 1,375,000 $8.00 $11,000,000.00 $3,058.00
- ---------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Debentures(3) of Enterbank
Holdings, Inc. ................................... (3) -- -- --
- ---------------------------------------------------------------------------------------------------------------------------------
Guarantees of Preferred Securities.................. (4) -- -- --
=================================================================================================================================
</TABLE>
(1) Includes 125,000 Preferred Securities which may be sold by EBH Capital Trust
I to cover over-allotments.
(2) The registration fee is calculated in accordance with Rules 457(i) and (n).
(3) The Junior Subordinated Debentures will be purchased by EBH Capital Trust I
with proceeds of the sale of the Preferred Securities. Such securities may
later be distributed for no additional consideration to the holders of the
Preferred Securities of EBH Capital Trust I upon its dissolution and the
distribution of its assets.
(4) This Registration Statement is deemed to cover the Subordinated Debentures
of Enterbank Holdings, Inc., the rights of holders of Subordinated
Debentures of Enterbank Holdings, Inc. under the Indenture and the rights of
holders of the Preferred Securities under the Trust Agreement, the Guarantee
and the Expense Agreement entered into by Enterbank Holdings, Inc. No
separate consideration will be received for the Guarantee.
-------------------------
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 WHICH 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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
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.
SUBJECT TO COMPLETION. DATED SEPTEMBER 27, 1999
PROSPECTUS
1,250,000 PREFERRED SECURITIES
EBH CAPITAL TRUST I
[ENTERBANK HOLDINGS, INC. LOGO]
% CUMULATIVE PREFERRED SECURITIES
(LIQUIDATION AMOUNT $8 PER PREFERRED SECURITY)
FULLY, IRREVOCABLY AND UNCONDITIONALLY GUARANTEED
ON A SUBORDINATED BASIS AS DESCRIBED IN THIS PROSPECTUS BY
ENTERBANK HOLDINGS, INC.
------------------------
The preferred securities of EBH Capital Trust I being offered generally
consist of an indirect beneficial interest in % junior subordinated
debentures of Enterbank Holdings, Inc. The junior subordinated debentures have
the same payment terms as the preferred securities and will be purchased and
held by EBH Trust using the proceeds of this offering. A brief description of
the preferred securities can be found under "Prospectus Summary -- The Offering"
in this prospectus.
Application has been made to have the preferred securities listed for
trading on the American Stock Exchange under the trading symbol "EBT.Pr.A".
------------------------
YOU SHOULD CONSIDER THE "RISK FACTORS" BEGINNING ON PAGE 10 BEFORE
INVESTING IN THE PREFERRED SECURITIES.
------------------------
THE PREFERRED SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS, OR OTHER
OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE BANK INSURANCE FUND OF THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
<TABLE>
<CAPTION>
PER PREFERRED
SECURITY TOTAL
------------- -----
<S> <C> <C>
Price to Public........................................... $8.00 $10,000,000
Proceeds to EBH Trust..................................... $8.00 $10,000,000
</TABLE>
This is a firm commitment underwriting. Enterbank will pay underwriting
commissions of $ per preferred security, or a total of $ , for the
arranging of the investment in its junior subordinated debentures. The
underwriter has been granted a 30-day option to purchase up to an additional
125,000 preferred securities to cover over-allotments, if any.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
STIFEL, NICOLAUS & COMPANY
INCORPORATED
DATE OF THIS PROSPECTUS IS , 1999.
<PAGE> 3
[MAP OF ENTERBANK SERVICE AREA]
------------------------
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in (i) this prospectus, (ii) any applicable
amendment to this prospectus and (iii) the documents incorporated by reference
into this prospectus, may constitute "forward-looking statements" within the
meaning of the federal securities laws. Forward-looking statements are based on
management's beliefs, assumptions and expectations of our future economic
performance, taking into account the information currently available to them.
These statements are not statements of historical fact. Forward-looking
statements involve risks and uncertainties that may cause our actual results,
performance or financial condition to be materially different from the
expectations of future results, performance or financial condition we express or
imply in any forward-looking statements. Some of the important factors that
could cause our actual results, performance or financial condition to differ
materially from our expectations are:
- The effect that changes in interest rates and our cost of funds have on
our earnings and assets.
- Our level of loan defaults and delinquencies.
- Our ability to successfully grow and realize profits from our commercial
banking operations and our strategic non-banking lines of business.
- Concentrations of our loans in one geographic area.
- Our ability to retain key personnel.
- The degree and nature of our competition.
- Changes in government regulation of our business.
- Environmental liability associated with foreclosures.
- The effect of the Year 2000 problem on us and on those entities with
which we do business.
When used in our documents or oral presentations, the words "believe,"
"may," "will," "should," "intend," "anticipate," "estimate," "expect,"
"objective," "projection," "forecast," "goal," or similar words or the negatives
of these words are intended to identify forward-looking statements. We qualify
any such forward-looking statements entirely by these cautionary factors.
i
<PAGE> 4
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus.
The summary is not complete and does not contain all of the information that you
should consider before investing in the preferred securities. You should read
the entire prospectus carefully.
We use the term "we", "Enterbank" or "Enterbank Holdings" to refer to
Enterbank Holdings, Inc., a business corporation organized under Delaware law.
We use the term "EBH Trust" to refer to EBH Capital Trust I, a Delaware business
trust organized to purchase our junior subordinated debentures and issue the
preferred securities. We use the term "Enterprise Bank" to refer to Enterprise
Bank, a commercial bank with trust powers organized under the laws of Missouri.
Unless the context otherwise requires, references in this prospectus to
Enterbank include Enterbank Holdings and Enterprise Bank, but not EBH Trust.
GENERAL
Enterprise Bank was organized in 1988 to focus primarily on the banking
needs of closely-held businesses, their owners and professional individuals.
Enterbank Holdings was formed to serve as a holding company for Enterprise Bank
in 1995. From 1988 through 1996, commercial banking services were provided to
Enterprise Bank customers from a single location in Clayton, Missouri, an
affluent residential and business oriented suburb of St. Louis. We opened two
additional facilities in St. Peters and Sunset Hills, both also located in the
St. Louis Metropolitan Statistical Area, in 1997. We selected these locations
based on our expectations for growth and the high concentration of closely-held
businesses and professionals in these markets. We opened a central operations
facility in St. Louis County in 1998.
As a complement to our banking services, we operate Enterprise Financial
Advisors, a fee-based financial planning and trust service, and our subsidiary,
Enterprise Merchant Banc, Inc., which provides merchant banking services to
closely-held businesses and their owners.
ENTERPRISE BANK
Enterprise Bank offers a broad range of commercial and personal banking
services to our customers. Loans include commercial, real estate, financial and
industrial development, real estate construction and development and consumer
loans which are made primarily to owners and affiliates of our commercial
customers. We also provide cash management, Automated Clearing House,
safe-deposit box, lock box and online banking services.
We have experienced significant internal growth since our inception while
consistently increasing profitability and maintaining asset quality at a level
which we believe compares favorably to our peer group. For the period from
December 31, 1994 to June 30, 1999:
- our loans, assets and deposits increased at compounded annual growth
rates of 35%, 31%, and 32%, respectively;
- our shareholders' equity increased at a compounded annual growth rate of
26%;
1
<PAGE> 5
- our net income increased at a compounded annual growth rate of 30%; and
- our net loan charge-offs to average loans ratio averaged 0.06%.
We believe our profitable growth and above average asset quality has
resulted principally from our ability to compete effectively in our target
market through our continued emphasis on customer service and responsiveness,
our officers' and directors' relationships within the business community and our
ability to react to the customer dislocation that has accompanied industry
consolidation within our banking markets.
ENTERPRISE MERCHANT BANC
Enterprise Merchant Banc, Inc. was first established by us in 1995 to
provide merchant banking services to closely-held businesses and their owners.
Its current operations include a minority investment in Enterprise Merchant
Banc, LLC, which focuses on providing equity capital and equity-linked debt
investments to growing companies in need of additional capital to finance
internal and acquisition-related growth. Additionally, Enterprise Merchant Banc,
Inc. receives fee income for its role as a financial advisor in capital raising
transactions as well as mergers and acquisitions. It focuses on "second stage"
and mezzanine financing for established companies rather than "seed money" for
start up operations. Due to our relatively recent entry into this business and
the long-term nature of merchant banking returns, Enterprise Merchant Banc
Inc.'s present contributions to Enterbank Holdings' revenues and net income are
minimal. We believe, however, that it is well-positioned to become a significant
part of our strategy to achieve continued growth and profitability.
ENTERPRISE FINANCIAL ADVISORS
Enterprise Financial Advisors was organized as a division of Enterprise
Bank in late 1997 to provide fee-based personal and corporate financial
consulting and trust services to our target market. Personal financial
consulting includes estate planning, investment management, retirement planning,
trust services and custodial services. Corporate consulting services are focused
in the areas of retirement plans, management compensation and management
succession issues. Some investment management services are provided through
Argent Capital Management, a money management company that invests principally
in large capitalization companies. We own an 8% interest in Argent Capital
Management. We also receive assistance in staffing, training, marketing and
regulatory compliance from Moneta Group, Inc., a nationally recognized firm in
the financial planning industry. Enterprise Financial Advisors has been an
integral part of Enterbank Holdings' growth, and we believe that it will play a
key role in our strategy to achieve continued growth and profitability as it
continues to expand the products and services it offers to customers.
2
<PAGE> 6
EBH TRUST
EBH Trust is a Delaware business trust created in 1999 for the single
purpose of offering the preferred securities and purchasing the junior
subordinated debentures of Enterbank Holdings. EBH Trust will have a term of 35
years, but may dissolve earlier as provided in its trust agreement.
Enterbank Holdings' and EBH Trust's principal executive offices are located
at 150 N. Meramec, St. Louis, Missouri 63105. The main telephone number for both
Enterbank Holdings and EBH Trust is (314) 725-5500.
3
<PAGE> 7
THE OFFERING
Preferred Securities issuer..... EBH Capital Trust I.
Securities offered.............. EBH Trust is offering 1,250,000 of its
preferred securities, which represent an
indirect beneficial interest in junior
subordinated debentures issued by Enterbank
and held by EBH Trust.
EBH Trust will sell its preferred securities
to the public and its common securities to
Enterbank. Together, the preferred
securities and the common securities are
referred to as trust securities. EBH Trust
will use the proceeds from the sale of trust
securities to buy a series of % junior
subordinated debentures due ,
2029, from Enterbank with the same payment
terms as the preferred securities.
Quarterly distributions are
payable to you on the Preferred
Securities.................... The distributions payable on each preferred
security will:
- be fixed and accumulate at a rate per year
of %;
- accrue from the date of issuance of the
preferred securities; and
- be payable quarterly on the 15th day of
March, June, September and December of
each year that the preferred securities
are outstanding, beginning on December 15,
1999, subject to the right to defer
distributions on the preferred securities.
Enterbank and EBH Trust have
rights to defer distributions
to you on the Preferred
Securities.................... EBH Trust may defer distributions on the
preferred securities if Enterbank defers
interest payments on the junior subordinated
debentures. Enterbank generally has the
right to defer interest payments on the
junior subordinated debentures for up to 20
consecutive quarters. During any deferral
period, you will still accumulate the right
to receive distributions when subsequently
made at the annual rate of %, plus you
will earn interest at the annual rate of
%, compounded quarterly, on any unpaid
distributions.
4
<PAGE> 8
You will still be taxed even if
distributions on the Preferred
Securities are deferred....... If distributions on the preferred securities
are deferred, you will also be required to
accrue interest income in the form of
original issue discount and include it in
your gross income for United States federal
income tax purposes for as long as the
junior subordinated debentures remain
outstanding, even if you are a cash basis
taxpayer. For further information on
deferrals and their tax consequences, see
"Risk Factors -- Distributions on the
Preferred Securities may be deferred; you
may have to include interest in your taxable
income before you receive cash,"
"Description of the Junior Subordinated
Debentures -- Option to Extend Interest
Payment Period" and "Material Federal Income
Tax Consequences -- Interest Income and
Original Issue Discount."
You will be required to sell
your Preferred Securities to EBH
Trust when the Junior
Subordinated Debentures
mature........................ The junior subordinated debentures will
mature on , 2029. You will be
required to sell your preferred securities
to EBH Trust upon the stated maturity date
of the junior subordinated debentures or
earlier if they are prepaid.
If the Junior Subordinated
Debentures are prepaid, your
Preferred Securities will be
redeemed...................... Upon Enterbank having received prior
approval of the Board of Governors of the
Federal Reserve System, if required, we may
prepay the junior subordinated debentures
prior to maturity:
- on or after, 2004; or
- at any time upon events occurring which
may have a significant adverse effect on
the benefits to Enterbank of having the
preferred securities outstanding.
Upon any prepayment of the junior
subordinated debentures, your preferred
securities will be redeemed at the
liquidation amount of $8 per preferred
security plus any accrued and unpaid
distributions to the date of redemption. For
further information on redemptions, see
"Description of the Preferred
Securities -- Redemption -- Mandatory and
Optional Rights of Enterbank" and
"Description of the Junior Subordinated
Debentures -- Redemption."
5
<PAGE> 9
At its option, Enterbank may
require you to exchange your
Preferred Securities for its
Junior Subordinated
Debentures.................... Enterbank has the right at any time to
dissolve or liquidate EBH Trust and
distribute the junior subordinated
debentures to you in exchange for your
preferred securities. However, Enterbank
must receive prior approval of the Federal
Reserve and first pay the creditors, if any,
of EBH Trust. Upon a dissolution or
liquidation of EBH Trust, you will receive
junior subordinated debentures in exchange
for the principal amount of your holdings in
preferred securities, plus accrued and
unpaid interest equal to the accrued and
unpaid distributions on the preferred
securities. For further information
concerning distribution of the junior
subordinated debentures, see "Description of
the Preferred Securities -- Distribution of
Junior Subordinated Debentures."
Your Preferred Securities are
fully and unconditionally
guaranteed by Enterbank on a
subordinated basis............ Enterbank will fully, irrevocably and
unconditionally guarantee the preferred
securities on a subordinated basis. If
Enterbank does not make a payment on the
junior subordinated debentures, EBH Trust
will not have sufficient funds to make
payments on the preferred securities. The
preferred securities guarantee does not
cover payments when EBH Trust does not have
sufficient funds. For further information
concerning our guarantee of the preferred
securities, see "Description of the
Preferred Securities Guarantee."
Your Preferred Securities rank
lower in payment compared to
other obligations of
Enterbank..................... Enterbank's obligations under its preferred
securities guarantee, the junior subordin-
ated debentures and other governing
documents described in this prospectus are
unsecured and rank junior in right of
payment to all current and future senior and
subordinated debt of Enterbank. In addition,
because Enterbank is a bank holding company,
all existing and future liabilities of any
Enterbank subsidiary will rank prior to all
obligations of Enterbank relating to the
preferred securities and the junior
subordinated debentures. There is no limit
on the amount of other preferred securities
or other junior subordinated debentures of
Enterbank or its subsidiaries that may be
issued in the future.
6
<PAGE> 10
Future issuances of this type will rank
equally with Enterbank's obligations under
the junior subordinated debentures and its
preferred securities guarantee described in
this prospectus. The preferred securities
will generally rank equally and payments on
them will be made proportionately, with the
common securities of EBH Trust, which will
be held by Enterbank.
You will have limited voting
rights.......................... As a holder of preferred securities, you
have only limited voting rights. These
rights relate only to the dissolution or
termination of EBH Trust and removal of the
property trustee and the indenture trustee
of EBH Trust upon selected events described
in this prospectus. See "Description of the
Preferred Securities -- Voting Rights;
Amendment of the Trust Agreement."
The Preferred Securities will be
in book entry form only......... You will not receive a certificate for your
preferred securities. Instead, 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 or its nominee.
There is no established market
for the Preferred Securities.... Application has been made to have the
preferred securities listed for trading on
the American Stock Exchange under the
trading symbol "EBT.Pr.A". Prior to this
offering, there has been no public market
for the preferred securities. We can not
give any assurance as to the liquidity of
any trading market for the preferred
securities.
Use of proceeds of sale of the
Preferred Securities.......... The proceeds of the sale of the preferred
securities will be invested by EBH Trust in
the junior subordinated debentures.
Enterbank will receive the proceeds from the
issuance of the junior subordinated
debentures. Enterbank intends to:
- repay approximately $5 million of
Enterbank Holdings' debt under its
revolving credit facility; and
- retain the remainder for general corporate
purposes including investments from time
to time in Enterprise Bank in the form of
additional capital.
7
<PAGE> 11
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents our selected consolidated financial data as of
and for the five years in the period ended December 31, 1998 and the six month
periods ended June 30, 1999 and 1998. The information as of and for the five
years in the period ended December 31, 1998 has been derived from our
consolidated financial statements, as incorporated in this prospectus by
reference to our 1998 Annual Report on Form 10-K. The information as of and for
the six month periods ended June 30, 1999 and 1998 is unaudited and, in the
opinion of our management, reflects all adjustments considered necessary for a
fair presentation of the results for such interim periods. Our unaudited interim
results have been derived from our unaudited consolidated financial statements
incorporated in this prospectus by reference to our Quarterly Report on Form
10-Q for the quarter ending June 30, 1999. The information should be read in
conjunction with the financial statements, including the notes thereto,
contained in our Reports on Form 10-K and 10-Q. See "Where You Can Find More
Information." Historical results are not necessarily indicative of results to be
expected for any future period.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
--------------------- ---------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Interest income............. $ 14,377 $ 11,823 $ 25,414 $ 18,759 $ 12,554 $ 10,914 $ 7,374
Interest expense............ 6,410 5,438 11,869 8,582 5,569 4,887 2,570
--------- --------- --------- --------- --------- --------- ---------
Net interest income......... 7,967 6,385 13,545 10,177 6,985 6,027 4,804
Provision for possible loan
losses.................... 237 521 711 775 345 631 450
--------- --------- --------- --------- --------- --------- ---------
Net interest income after
provision for possible
loan losses............... $ 7,730 $ 5,864 $ 12,834 $ 9,402 $ 6,640 $ 5,396 $ 4,354
Noninterest income.......... 979 862 2,079 476 1,239 836 805
Noninterest expense......... 6,288 4,581 10,052 6,339 5,146 4,187 3,551
--------- --------- --------- --------- --------- --------- ---------
Income before provision for
income taxes.............. 2,421 2,145 4,861 3,539 2,733 2,045 1,608
Provision for income
taxes..................... 870 819 1,850 1,317 1,031 741 607
--------- --------- --------- --------- --------- --------- ---------
Income before cumulative
effect of a change in
principle................. 1,551 1,326 3,011 2,222 1,702 1,304 1,001
Cumulative effect on prior
years of a change in asset
classification............ 121 -- -- -- -- -- --
--------- --------- --------- --------- --------- --------- ---------
Net income.................. $ 1,672 $ 1,326 $ 3,011 $ 2,222 $ 1,702 $ 1,304 $ 1,001
========= ========= ========= ========= ========= ========= =========
DIVIDENDS
Common stock dividends
declared.................. 143 117 235 195 122 102 88
Dividend payout ratio....... 8.57% 8.77% 7.81% 8.49% 7.21% 7.87% 8.82%
PER SHARE DATA(1)
Earnings per common share:
Basic....................... 0.23 0.19 0.43 0.35 0.37 0.30 0.23
Diluted..................... 0.22 0.18 0.40 0.33 0.32 0.26 0.21
Common stock cash
dividends................. 0.020 0.017 0.033 0.030 0.027 0.023 0.020
Average common shares and
common share equivalents
outstanding............... 7,649,979 7,478,640 7,544,820 6,674,901 5,252,058 5,056,437 4,844,424
Book value (period end)..... 4.31 3.89 4.11 3.78 2.96 2.75 2.46
</TABLE>
8
<PAGE> 12
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
--------------------- ---------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT
PERIOD END)
Investment securities....... $ 16,209 $ 11,465 $ 46,291 $ 13,434 $ 15,246 $ 16,907 $ 16,542
Loans less unearned loan
fees...................... 338,634 248,357 273,818 225,560 134,133 110,464 85,687
Total assets................ 410,451 317,408 375,304 291,365 184,584 153,706 122,212
Total deposits.............. 369,334 288,847 339,180 264,301 168,961 141,140 104,799
Total debt.................. 9,191 -- 6,000 -- 300 -- --
Common shareholders'
equity.................... 30,790 27,613 29,240 26,067 14,758 12,052 10,781
Total shareholders'
equity.................... 30,790 27,613 29,240 26,067 14,758 12,052 10,781
SELECTED RATIOS
Return on average total
assets(2)................. 0.89% 0.93% 0.94% 0.97% 1.12% 0.99% 0.96%
Return on average total
shareholders' equity(2)... 11.20 9.94 10.86 9.78 12.73 11.13 9.71
Net interest margin......... 4.59 4.80 4.59 4.79 4.96 4.98 5.07
Efficiency ratio............ 70.29 63.21 64.34 59.50 62.57 61.01 63.31
Year end assets per
employee.................. 2,870 3,023 3,128 3,469 3,296 3,941 3,395
ASSET QUALITY RATIOS
Allowance for possible loan
losses to loans........... 1.02% 1.21% 1.17% 1.11% 1.32% 1.27% 1.17%
Nonperforming loan to
loans(3).................. 0.00 0.00 0.00 0.02 0.12 0.10 0.00
Allowance for possible loan
losses to nonperforming
loans(3).................. * * * * * * *
Nonperforming assets as a
percent of assets(4)...... 0.20 0.26 0.22 0.29 0.56 0.64 1.45
Net loan charge-offs
(recoveries) to average
loans..................... 0.00 0.03 0.01 0.02 (0.02) 0.24 0.23
CAPITAL RATIOS
Average shareholders' equity
to average assets......... 7.97 9.32 8.70 9.97 8.76 8.89 9.92
Total risk-based capital
ratio..................... 9.74 11.80 10.97 12.28 11.53 11.40 11.75
Leverage ratio.............. 8.20 9.56 9.16 11.42 9.62 9.11 10.46
RATIO OF EARNINGS (LOSS) TO
COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS(5)
Including interest on
deposits.................. 1.36 1.37 1.39 1.39 1.47 1.40 1.58
Excluding interest on
deposits.................. 5.58 7.15 7.28 9.57 11.51 11.02 9.04
</TABLE>
- -------------------------
(1) Per share data has been adjusted to give retroactive effect to a 3-for-1
stock split effective September 29, 1999.
(2) Ratios for six month periods are annualized.
(3) Nonperforming loans consist of nonaccrual loans and loans with restructured
terms.
(4) Nonperforming assets consist of nonperforming loans and foreclosed assets.
(5) For purposes of calculating the ratio of earnings to combined fixed charges,
earnings consist of income before taxes plus interest and rent expense.
Fixed charges consist of interest and rent expense.
* Not meaningful.
9
<PAGE> 13
RISK FACTORS
In addition to the other information in this prospectus, you should
carefully consider the following factors before investing in the preferred
securities.
RISK FACTORS RELATING TO THE PREFERRED SECURITIES
ENTERBANK'S OBLIGATIONS UNDER THE PREFERRED SECURITIES GUARANTEE AND THE
JUNIOR SUBORDINATED DEBENTURES RANK LOWER THAN OTHER ENTERBANK OBLIGATIONS.
Enterbank's obligations under the junior subordinated debentures are
unsecured and will rank junior in priority of payment to any senior and
subordinated debt Enterbank may incur, which generally includes indebtedness,
liabilities or obligations of Enterbank, contingent or otherwise. Enterbank's
obligations under the junior subordinated debentures will also be effectively
subordinated to all existing and future liabilities and obligations of its
subsidiaries, including Enterprise Bank.
The preferred securities, the junior subordinated debentures and the
preferred securities guarantee do not limit the ability of Enterbank or
Enterprise Bank to incur unlimited future indebtedness, liabilities and
obligations, which may rank senior to the junior subordinated debentures and the
preferred securities guarantee.
For more information on Enterbank's obligations under the preferred
securities guarantee and the junior subordinated debentures, see "Description of
the Preferred Securities Guarantee -- Status of the Preferred Securities
Guarantee" and "Description of the Junior Subordinated Debentures
- -- Subordination of Junior Subordinated Debentures to Senior and Subordinated
Debt of Enterbank."
IF WE DO NOT MAKE PAYMENTS UNDER THE JUNIOR SUBORDINATED DEBENTURES, EBH
TRUST WILL BE UNABLE TO PAY DISTRIBUTIONS AND LIQUIDATION AMOUNTS AND THE
PREFERRED SECURITIES GUARANTEE WILL NOT APPLY.
The ability of EBH Trust to pay distributions and, upon redemption, the
liquidation amount of $8 per referred security is solely dependent upon our
ability to make the related payments on the junior subordinated debentures when
due. If we default on our obligation to pay principal of or interest on the
junior subordinated debentures, EBH Trust will not have sufficient funds to pay
distributions or the liquidation amount.
In that case, you will not be able to rely upon the preferred securities
guarantee for payment of these amounts because the preferred securities
guarantee only applies if we make a payment of principal or interest on the
junior subordinated debentures. For more information on our obligations under
the preferred securities guarantee and the junior subordinated debentures, see
"Description of the Preferred Securities Guarantee -- Status of the Preferred
Securities Guarantee" and "Description of the Junior Subordinated Debentures
- -- Subordination of Junior Subordinated Debentures to Senior and Subordinated
Debt of Enterbank."
OUR INTEREST PAYMENTS ON THE JUNIOR SUBORDINATED DEBENTURES ARE DEPENDENT
ON OUR RECEIPT OF DIVIDENDS FROM ENTERPRISE BANK.
A substantial majority of our assets consists of our investment in
Enterprise Bank. Thus, our ability to pay interest and principal on the junior
subordinated debentures to
10
<PAGE> 14
EBH Trust depends primarily upon our receipt of cash dividends from Enterprise
Bank. Dividend payments from Enterprise Bank to us are subject to, among other
things:
- regulatory limitations, generally based on current and retained earnings
and capital maintenance requirements, imposed by various bank regulatory
agencies;
- profitability, financial condition and capital expenditures and other
cash flow requirements of Enterprise Bank; and
- prior claims of creditors of Enterprise Bank.
If Enterprise Bank is unable to pay sufficient dividends to us, then we
will likely be unable to make payments on the junior subordinated debentures,
thereby leaving insufficient funds for EBH Trust to make payments to you on the
preferred securities.
DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED; YOU MAY HAVE TO
INCLUDE INTEREST IN YOUR TAXABLE INCOME BEFORE YOU RECEIVE CASH.
It is possible that you will not receive cash distributions on the
preferred securities for up to 20 consecutive quarters (in each case, an
"extension period"). Because you will still be required to include interest in
your income for United States federal income tax purposes as it accrues, you may
have to pay taxes before you actually receive the cash distributions.
We have the right, at one or more times, to defer interest payments on the
junior subordinated debentures for up to 20 consecutive quarters, but not beyond
the maturity date of the junior subordinated debentures and must make payments
of all deferred interest upon the earlier of the end of the extension period or
the maturity date. This right exists only if no event of default under the
junior subordinated debentures has occurred and is continuing. If we exercise
this right, EBH Trust would defer distributions on the preferred securities
during any extension period. However, you would still accumulate distributions
at the annual rate of % of the liquidation amount of $8 per preferred
security, plus you will earn interest at the annual rate of %, compounded
quarterly, on any unpaid distributions. When we pay all the accumulated amounts
due to you during an extension period, the extension period will terminate.
However, we have the right to begin another extension period under the same
terms outlined above. There is no limit on the number of times we can elect to
begin an extension period. During an extension period, the preferred securities
may trade at a price that does not fully reflect the value of accrued but unpaid
distributions. See "Description of the Preferred Securities."
You will also not receive the cash distributions related to any accrued and
unpaid interest from EBH Trust if you sell the preferred securities before the
end of an extension period. However, you will be required to include accrued
interest income as original issue discount for United States federal income tax
purposes in respect of your pro rata share of the junior subordinated debentures
held by EBH Trust. While we will take the position that original issue discount
will not arise before the first extension period, it is possible that all
interest on the junior subordinated debentures would be required to be accounted
for as original issue discount. In these circumstances, the receipt of interest
would not separately be reported as taxable income. See "Material Federal Income
Tax Consequences" for more information regarding the tax consequences of the
preferred securities.
We have no current intention of exercising our right to defer interest
payments on the junior subordinated debentures. However, if we exercise our
right in the future, the market price of the preferred securities is likely to
be adversely affected.
11
<PAGE> 15
IF WE REDEEM THE JUNIOR SUBORDINATED DEBENTURES IT WILL CAUSE A REDEMPTION
OF THE PREFERRED SECURITIES AND YOU MAY NOT BE ABLE TO REINVEST THE PROCEEDS AT
THE SAME OR HIGHER RATE OF RETURN.
You are subject to prepayment risk of your preferred securities. If your
preferred securities are redeemed, you may not be able to reinvest the money you
receive in the redemption at a rate that is equal to or higher than the rate of
return you receive on the preferred securities. Although the junior subordinated
debentures have a stated maturity date of , 2029, they may
be redeemed by us prior to maturity which, in turn, would cause an early
redemption of the preferred securities, in the following circumstances:
- In whole or in part, beginning on , 2004 at our
option.
- In whole upon a change in the federal tax laws or a change in the
interpretation of the tax laws by the courts or the Internal Revenue
Service, which would result in a risk that (1) EBH Trust may be subject
to federal income tax, (2) the interest we pay on the junior subordinated
debentures will not be deductible by us for federal income tax purposes,
or (3) EBH Trust is or will be subject to more than a minimal amount of
other taxes or governmental charges.
- In whole upon a change in the laws or regulations to the effect that EBH
Trust is or will be considered to be an investment company that is
required to be registered under the Investment Company Act of 1940.
- In whole upon a change in the laws or regulations if there is a risk that
we will not be able to treat all or a substantial portion of the
preferred securities as core capital for purposes of federal banking
guidelines.
Our exercise of these redemption rights is subject to our receipt of prior
approval of federal banking regulators, if required. For further information
concerning tax or regulatory events that may trigger redemption of the junior
subordinated debentures and prepayment of the preferred securities, see
"Description of the Preferred Securities -- Redemption."
YOU ARE SUBJECT TO PREPAYMENT RISK BECAUSE POSSIBLE TAX LAW CHANGES COULD
RESULT IN A REDEMPTION OF THE PREFERRED SECURITIES.
Future legislation may be enacted that could adversely affect the ability
of Enterbank to deduct its interest payments on the junior subordinated
debentures for federal income tax purposes, making redemption of the junior
subordinated debentures likely and resulting in a redemption of the preferred
securities.
From time to time, the Clinton Administration has proposed federal income
tax law changes that would, among other things, generally deny interest
deductions to a corporate issuer if the debt instrument has a term exceeding 15
years and if the debt instrument is not reflected as indebtedness on the
issuer's consolidated balance sheet. Other proposed tax law changes would have
denied interest deductions if the debt instrument had a term exceeding 20 years.
These proposals were not enacted into law. Although it is impossible to predict
future proposals, if a future proposal of this sort were to become effective in
a form applicable to already issued and outstanding securities, Enterbank could
be precluded from deducting interest on the junior subordinated debentures.
Enactment of any such proposal might in turn give rise to a tax event as
described under "Description of the Preferred Securities -- Redemption
- -- Mandatory and Optional Rights of Enterbank."
You should also be aware that a petition was recently filed in the United
States Tax Court as a result of a challenge by the Internal Revenue Service
("IRS") of a taxpayer's
12
<PAGE> 16
treatment as indebtedness of a security issued with characteristics similar to
the junior subordinated indentures. Although the IRS agreed to dismissal of the
adjustments related to this issue, it could assert similar adjustments against
other taxpayers. If such adjustments were proposed and the issue were litigated
to a conclusion in which the IRS's position on this matter were sustained, such
a judicial determination could constitute a tax event which could result in an
early redemption of the preferred securities. For further information, see
"Description of the Preferred Securities -- Redemption -- Mandatory and Optional
Rights of Enterbank," "Description of the Junior Subordinated Indentures --
Redemption" and "Material Federal Income Tax Consequences."
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF PREFERRED
SECURITIES MAY HAVE AN ADVERSE EFFECT ON THE MARKET PRICE OF YOUR INVESTMENT.
Your investment in the preferred securities may decrease in value if the
junior subordinated debentures are distributed to you in exchange for your
preferred securities. We cannot predict the liquidity or market prices 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 discount to the
price that you paid to purchase the preferred securities.
Because you may receive junior subordinated debentures, you must also make
an investment decision with regard to these securities. You should carefully
review all the information regarding the junior subordinated debentures
contained in this prospectus.
Under "Material Federal Income Tax Consequences" we discuss applicable
United States federal income tax consequences of a distribution of the junior
subordinated debentures.
IN THE EVENT OF A DEFAULT UNDER THE PREFERRED SECURITIES, YOU MAY BE
REQUIRED TO RELY ON THE PROPERTY TRUSTEE OF EBH TRUST TO ENFORCE YOUR RIGHTS.
You may not be able to directly enforce rights against us if an event of
default occurs with respect to the junior subordinated debentures. For a listing
of events that are events of default, see "Description of the Preferred
Securities -- Events of Default; Notice" and "Description of the Junior
Subordinated Debentures -- Indenture Events of Default."
If an event of default under the junior subordinated debentures occurs and
is continuing, this event will also be an event of default under the preferred
securities. In that case, you generally would first have to rely on the property
trustee's enforcement of its rights as holder of the junior subordinated
debentures against us. If the property trustee fails to exercise its rights
under the junior subordinated debentures, you will then be able to exercise any
other remedies available under the junior subordinated debentures.
However, if the default arises because we fail to pay interest or principal
(except during an extension period) on the junior subordinated debentures, you
may proceed directly against us without first relying on the property trustee.
LIMITED COVENANTS RELATING TO THE PREFERRED SECURITIES AND THE JUNIOR
SUBORDINATED DEBENTURES WILL NOT NECESSARILY PROTECT YOU.
Our obligations as set forth in the governing documents (i.e., relating to
the preferred securities and the junior subordinated debentures) are limited. As
a result, the governing documents will not necessarily protect you in the event
of an adverse change in our financial condition or results of operations. The
governing documents do not limit our ability or any of our subsidiaries to incur
additional debt. You should not consider the terms of the governing documents to
be a significant factor in evaluating whether we will
13
<PAGE> 17
be able to comply with our obligations under the junior subordinated debentures
or the preferred securities guarantee.
WE WILL CONTROL EBH TRUST BECAUSE YOU WILL HAVE LIMITED VOTING RIGHTS.
As a holder of preferred securities, you have limited voting rights. These
rights relate only to the modification of the preferred securities and removal
of the property and indenture trustees of EBH Trust upon a limited number of
events. You will not have any voting rights regarding Enterbank Holdings'
business or any matters regarding the administrative trustees. See "Description
of the Preferred Securities -- Voting Rights; Amendment of the Trust Agreement"
for more information on your limited voting rights.
TRADING CHARACTERISTICS OF THE PREFERRED SECURITIES MAY CREATE ADVERSE TAX
CONSEQUENCES FOR YOU.
The preferred securities may trade at a price that does not reflect the
value of accrued but unpaid interest on the underlying junior subordinated
debentures. If you dispose of your preferred securities between record dates for
payments on the preferred securities, you may have adverse tax consequences.
Under these circumstances, you will be required to include accrued but unpaid
interest on the junior subordinated debentures allocable to the preferred
securities through the date of disposition in your income as ordinary income if
you use the accrual method of accounting or if such interest represents original
issue discount.
If interest on the junior subordinated debentures is included in income
under the original issue discount provisions, you would add this amount to your
adjusted tax basis in your share of the underlying junior subordinated
debentures deemed disposed. If your selling price is less than your adjusted tax
basis, which will include all accrued but unpaid original issue discount
interest included in your income, you could recognize a capital loss which,
subject to certain limited exceptions, cannot be applied to offset ordinary
income for federal income tax purposes. See "Material Federal Income Tax
Consequences -- Interest Income and Original Issue Discount" and "-- Sale or
Redemption of Preferred Securities" for more information on possible adverse tax
consequences to you.
THERE HAS NOT BEEN A PRIOR PUBLIC MARKET FOR THE PREFERRED SECURITIES, AND
AN ACTIVE TRADING MARKET FOR THE PREFERRED SECURITIES MAY NOT DEVELOP.
The preferred securities constitute a new issue of securities with no
established trading market. Although application has been made to have the
preferred securities listed for trading on the American Stock Exchange, a
listing does not guarantee that a trading market for the preferred securities
will develop. If a trading market does develop, there is no assurance of the
depth of that market or that holders of preferred securities will be able to
sell their preferred securities easily. An inactive or illiquid trading market
could adversely affect the price of your preferred securities.
ENTERBANK HOLDINGS RISK FACTORS
ANY CHANGES IN INTEREST RATES OR OUR COST OF FUNDS MAY ADVERSELY AFFECT OUR
EARNINGS AND FINANCIAL CONDITION.
Changes in interest rates affect our operating performance and financial
condition in diverse ways. Our profitability depends in substantial part on our
"net interest spread," which is the difference between the rates we receive on
loans and investments and the rates we pay for deposits and other sources of
funds. Our net interest spread will depend on many factors that are partly or
entirely outside our control, including competition, federal economic, monetary
and fiscal policies, and economic conditions generally.
14
<PAGE> 18
Historically, net interest spreads for many financial institutions have widened
and narrowed in response to these and other factors, which are often
collectively referred to as "interest rate risk." We intend to try to minimize
our exposure to interest rate risk, but we will be unable to eliminate it. In
addition, we fund a portion of our loans through wholesale deposits, which are
considered to be a lower cost, more stable source than alternative borrowed
funds. If we are unable to attract wholesale deposits, our cost of funds may
rise, which could have a material adverse effect on our operating results.
In our banking operations, we are subject to interest rate risk on loans
held in our portfolio arising from mismatches (i.e., the interest rate
sensitivity gap) between the dollar amount of repricing or maturing assets and
liabilities, which is measured in terms of the ratio of the interest rate
sensitivity gap to total assets. A higher level of assets repricing or maturing
than liabilities over a given time frame is considered asset-sensitive and is
reflected as a positive gap. In contrast, a higher level of liabilities
repricing or maturing than assets over a given time frame is considered
liability-sensitive and is reflected as a negative gap. An asset-sensitive
position (i.e., a positive gap) will generally enhance earnings in a rising
interest rate environment and will negatively impact earnings in a falling
interest rate environment. A liability-sensitive position (i.e., a negative gap)
will generally enhance earnings in a falling interest rate environment and
negatively impact earnings in a rising interest rate environment. Fluctuations
in interest rates are not predictable or controllable. Although we have
attempted to structure our asset and liability management strategies to mitigate
the impact on net interest income of changes in market interest rates, we can
not give any assurance that a sudden or significant change in prevailing
interest rates will not have a material adverse effect on our operating results.
IF BORROWERS DO NOT REPAY LOANS IT WILL ADVERSELY AFFECT ENTERBANK.
Some borrowers may not repay loans that Enterprise Bank makes to them. This
risk is inherent in the commercial banking business. If a significant amount of
loans are not repaid, it would have an adverse effect on Enterbank's earnings
and overall financial condition, and could cause the insolvency of Enterbank.
Like all financial institutions, Enterprise Bank maintains an allowance for
loan losses to provide for loan defaults and nonperformance. The allowance for
loan losses is maintained at a level management feels is adequate to absorb
losses inherent in the loan portfolio, an evaluation that is primarily based
upon a review of Enterprise Bank's and the banking industry's historical loan
loss experience, known and inherent risks contained in the loan portfolio,
composition, and growth of the loan portfolio, and current and projected
economic factors. However, Enterprise Bank's allowance for loan losses may not
be adequate to cover actual losses, and future provisions for loan losses may
adversely affect Enterbank's earnings. In addition, various regulatory agencies,
as an integral part of the examination process, periodically review Enterprise
Bank's loan portfolio. Such agencies may require Enterprise Bank to add to the
allowance for loan losses based on their judgments and interpretations of
information available to them at the time of their examinations.
OUR ABILITY TO IMPLEMENT OUR STRATEGY IS DEPENDENT UPON THE FUTURE SUCCESS
OF OUR SUBSIDIARIES.
The growth and success of our subsidiaries is important to our ability to
implement our strategy. In particular, both Enterprise Merchant Banc and
Enterprise Financial Advisors are unproven and relatively new operating units
still in the formative stages of growth. Their present contributions to our
revenues and net income are minimal. We do not control the operations of
Enterprise Merchant Banc, LLC, the profitability of which
15
<PAGE> 19
has a direct impact on Enterprise Merchant Banc. Moreover, the business and
profitability of Enterprise Financial Advisors are dependent, in part, on the
performance of third parties over which we have no control, including Argent
Capital Management and Moneta Group, Inc. The failure of these subsidiaries to
grow and be profitable in the future could adversely affect our financial
condition and our ability to meet our strategic objectives.
IF THERE ARE ADVERSE CONDITIONS IN OUR GEOGRAPHIC AREA OR WITH A FEW
CUSTOMERS, THERE MAY HAVE A DISPROPORTIONATELY LARGE EFFECT ON OUR FINANCIAL
RESULTS.
Our success is dependent to a certain extent upon the general economic
conditions in the St. Louis metropolitan area and, in particular, the conditions
for entrepreneurial entities and small businesses which are the focus of our
customer base. Although we expect that economic conditions will be favorable in
our markets, there can be no assurance that favorable economic conditions will
occur or, if they occur, that they will continue. Adverse changes in economic
conditions in the St. Louis metropolitan area could impair our ability to
collect loans and have a negative effect on our overall financial condition.
WE ARE DEPENDENT ON OUR KEY PERSONNEL.
Our growth and development to date have been largely dependent on certain
key employees of Enterbank and Enterprise Bank, the loss of any of whom could
have a material adverse effect. Our key employees are Fred H. Eller, James C.
Wagner, David J. Mishler, James E. Graser, Richard C. Leuck and Paul L. Vogel.
Each of these persons are officers of Enterbank or Enterprise Bank. We carry
"key person" life insurance on the lives of Mr. Eller and Mr. Vogel.
WE ARE IMPACTED BY COMPETITION FROM MANY OTHERS.
Our commercial banking, merchant banking and financial advisory businesses
are all extremely competitive. Many of our competitors are, or are affiliates
of, enterprises that have greater resources than we do.
Through our various businesses, we compete with different institutions,
including:
- other banks and thrift institutions;
- investment companies, mutual funds and money market funds;
- full service and discount broker dealers;
- insurance companies;
- credit unions; and
- mortgage companies.
Some of our competitors are not regulated as extensively as we are and,
therefore, may have greater flexibility in competing for business. Some of these
competitors are subject to similar regulation but have the advantages of
established customer bases, higher lending limits, extensive branch networks,
numerous automated teller machines or other factors. We compete by offering
market rates on our products and prompt service to our customers.
WE OPERATE A BUSINESS THAT IS SUBJECT TO SIGNIFICANT GOVERNMENT REGULATION.
The banking industry is heavily regulated. Our success depends not only on
competitive factors but also on the cost of complying with state and federal
regulations
16
<PAGE> 20
affecting banks and bank holding companies. We are subject to regulation by the
Federal Deposit Insurance Corporation, the Missouri Division of Finance and the
Board of Governors of the Federal Reserve System. These regulations put us at a
competitive disadvantage compared to less regulated competitors such as finance
companies, mortgage banking companies and leasing companies. Banking industry
regulations are primarily intended to protect depositors, not shareholders, and
are subject to continuous change. The ultimate effect of regulatory change
cannot be predicted with certainty. Additional statutes affecting financial
institutions may be proposed and enacted in the future. We are currently subject
to regulations which may change at any time. There can be no assurance that the
cost of complying with government regulations will not adversely affect our
business or economic performance.
WE MAY INCUR SIGNIFICANT COSTS IF WE FORECLOSE ON ENVIRONMENTALLY
CONTAMINATED REAL ESTATE.
If we foreclose on a defaulted real estate loan to recover our investment
in such real estate loan, we may be subject to environmental liabilities in
connection with the underlying real property. These liabilities could exceed the
fair value of the real property. It is also possible that hazardous substances
or wastes, contaminants, pollutants or their sources (as defined by state and
federal laws and regulations) may be discovered on properties during our
ownership or after they are sold to a third party. If they are discovered on a
property that we have acquired through foreclosure or otherwise, we may be
required to remove those substances and clean up the property. We may have to
pay for the entire cost of any removal and clean-up without the contribution of
any other third parties. These costs may also exceed the fair value of the
property. We may also be liable to tenants and other users of neighboring
properties. In addition, we may find it difficult or impossible to sell the
property prior to or following any such clean-up.
THE YEAR 2000 PROBLEM MAY HAVE AN ADVERSE IMPACT ON US OR ON OTHERS UPON
WHOM WE DEPEND.
Much of today's information technology (i.e., computer systems) and
embedded technology (e.g., microcontrollers) identifies a particular year on the
basis of the last two digits of that year. For example, the year "1998" is
recognized by the digits "98." The inability of information technology and
embedded technology to properly recognize a year that begins with "20" instead
of "19," if not corrected, may result in the production of erroneous results or
the failure of systems which rely on information technology and embedded
technology. This failure of systems, production of erroneous results and the
resulting damages is commonly known as the "Y2K Problem."
We are dependent, to a substantial degree, upon the proper functioning of
our computer systems as well as those of our vendors, suppliers and customers.
Most of our products and services rely on information and data provided by
others. Most of this information and data is provided electronically and is
dependent on information systems and telecommunications. The inability of our
vendors and suppliers to provide accurate information in a timely manner, our
inability to accurately and timely process such information, the inability of
our customers to receive and use our products and services, and a general
disruption of telecommunications and utilities as a result of the Y2K Problem
would most likely result in business interruption or shutdown, financial loss,
potential regulatory action, harm to our reputation and potential legal
liability.
We have developed a Y2K Problem compliance program and, as of September 15,
1999, all phases of the program were complete. We have also developed a Y2K
Problem contingency plan for which we believe all training will be completed by
October 31, 1999.
17
<PAGE> 21
Our contingency plan includes, among other things, the preparation and
maintenance of electronic and paper back up reports of Enterprise Bank's
accounts. If we are required to resort to our contingency plan due to the Y2K
Problem, we will incur additional costs, which may be significant, due to
inefficiencies associated with the contingency plan.
Our most likely risk from the Y2K Problem is that our core banking
software, which is used to monitor Enterprise Bank's loans and deposits, will be
unable to perform accurate calculations and maintain records. In the event our
core banking software does not function properly, our record keeping and
calculations will be performed manually by Enterprise Bank personnel. Any such
failure in our core banking software could have a material adverse effect on our
operations and financial performance.
We have incurred costs of approximately $100,000 for our Y2K Problem
compliance program. Although we do not anticipate any significant additional
costs, there can be no assurance that we will not incur additional costs which,
if incurred, may be significant.
Although we have conducted internal development and testing of our computer
systems to insure Y2K Problem compliance, we can give no assurance that our
internal systems will be completely free of errors. Furthermore, we can give no
assurance that all of our vendors will deliver Y2K Problem compliant
certificates or that the vendors will in fact be Y2K Problem compliant despite
their certification of compliance. If either our computer systems or those of
our vendors fail to function properly because of the Y2K Problem, the results of
our operations may materially suffer.
18
<PAGE> 22
USE OF PROCEEDS
All of the proceeds from the sale of preferred securities by EBH Trust will
be invested in the junior subordinated debentures. The net proceeds to Enterbank
Holdings from the sale of the junior subordinated debentures, after deducting
underwriting commissions and estimated offering expenses, will be approximately
$ , or $ if the Underwriter's over-allotment option is
exercised in full. We intend to use the net proceeds to:
- repay approximately $5 million outstanding as of September , 1999 under
Enterbank Holdings' revolving credit facility from Jefferson Bank and
Trust Company; and
- retain the remainder for general corporate purposes, including
investments from time to time in Enterprise Bank in the form of
additional capital.
On September 23, 1999, the interest rate on our $5 million revolving credit
facility from Jefferson Bank and Trust Company was 7.75%. Borrowings under the
revolving credit facility, which matures March 31, 2000, have been used to fund
the short term working capital needs of Enterbank Holdings and to provide
additional capital infusions to Enterprise Bank and other subsidiaries of
Enterbank Holdings.
ACCOUNTING TREATMENT
For financial reporting purposes, we will treat EBH Trust as our
subsidiary. Accordingly, we will include the accounts of EBH Trust in our
consolidated financial statements. We will include the preferred securities in
debt in our consolidated balance sheets, and will include appropriate
disclosures about the preferred securities, the guarantee and the junior
subordinated debentures in the notes to our consolidated financial statements.
For financial reporting purposes, we will record distributions on the preferred
securities as interest expense in our consolidated statements of income.
Future reports of Enterbank filed under the Securities Exchange Act of 1934
will include a footnote to the consolidated financial statements stating that:
- EBH Trust is a wholly-owned subsidiary of Enterbank;
- the sole asset of EBH Trust is the junior subordinated debentures,
specifying the principal amount, interest rate and maturity date of the
junior subordinated debentures; and
- the obligations of Enterbank described in this prospectus, in the
aggregate, constitute a full, irrevocable and unconditional guarantee on
a subordinated basis by Enterbank of the obligations of EBH Trust under
the preferred securities. EBH Trust will not provide separate reports
under the Securities Exchange Act of 1934.
19
<PAGE> 23
CAPITALIZATION
The following table sets forth (a) our historical capitalization at June
30, 1999 and (b) our adjusted capitalization at June 30, 1999 after giving
effect to the offering and the use of net proceeds as described in "Use of
Proceeds" above, and assuming the underwriter's over-allotment option is not
exercised.
<TABLE>
<CAPTION>
AT JUNE 30, 1999
----------------------------
AS ADJUSTED
FOR THE
ACTUAL OFFERING
-------- -----------
(DOLLARS IN THOUSANDS
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
LONG-TERM DEBT:
Notes payable....................................... $ 2,250 $ --
Guaranteed preferred beneficial interests in
Enterbank's subordinated debentures.............. -- 10,000
-------- --------
Total long-term debt............................. 2,250 10,000
SHAREHOLDERS' EQUITY:
Common Stock (10,500,000 shares authorized;
7,140,636 shares issued and outstanding)(1)...... 24 24
Surplus............................................. 19,327 19,327
Retained Earnings................................... 11,471 11,471
Accumulated other comprehensive loss................ (32) (32)
-------- --------
Total shareholders' equity....................... 30,790 30,790
-------- --------
Total capitalization............................. $ 33,040 $ 40,790
======== ========
CAPITAL RATIOS:
Ratio of equity to total assets..................... 7.50% 9.94%
Leverage ratio(2)(3)(4)(5).......................... 8.20% 10.56%
Risk-based capital ratios:(3)(4)(5)
Tier 1 capital to risk-weighted assets........... 8.77% 11.28%
Total capital to risk-weighted assets............ 9.74% 12.23%
</TABLE>
- -------------------------
(1) Adjusted to give retroactive effect to a 3-for-1 stock split to be effective
September 29, 1999.
(2) The leverage ratio is Tier 1 capital divided by average quarterly assets,
after deducting intangible assets and net deferred tax assets in excess of
regulatory maximum limits.
(3) The capital ratios, as adjusted, are computed including the total estimated
net proceeds from the sale of the preferred securities, in a manner
consistent with Federal Reserve guidelines.
(4) Federal Reserve guidelines for calculation of Tier 1 capital to
risk-weighted assets limits the amount of cumulative preferred securities
which can be included in Tier 1 capital to 25% of total Tier 1 capital. The
total amount of preferred securities offered hereby will be included as Tier
1 capital for Enterbank Holdings.
(5) Unrealized gain (loss), net of tax, on available for sale securities, which
is reflected as accumulated other comprehensive loss above, is not included
in calculating regulatory capital ratios.
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<PAGE> 24
BUSINESS
GENERAL
Enterprise Bank was organized in 1988 to focus primarily on the banking
needs of closely-held businesses, their owners and professional individuals.
Enterbank Holdings was formed to serve as a holding company for Enterprise Bank
in 1995. From 1988 through 1996, commercial banking services were provided to
Enterprise Bank customers from a single location in Clayton, Missouri, an
affluent residential and business oriented suburb of St. Louis. We opened two
additional facilities in St. Peters and Sunset Hills, both also located in the
St. Louis Metropolitan Statistical Area, in 1997. We selected these locations
based on our expectations for growth and the high concentration of closely-held
businesses and professionals in these markets. We opened a central operations
facility in St. Louis County in 1998.
As a complement to our banking services, we operate Enterprise Financial
Advisors, a fee-based financial planning and trust service, and our subsidiary,
Enterprise Merchant Banc, Inc., which provides merchant banking services to
closely-held businesses and their owners.
ENTERPRISE BANK
Enterprise Bank offers a broad range of commercial and personal banking
services to our customers. Loans include commercial, real estate, financial and
industrial development, real estate construction and development and consumer
loans which are made primarily to owners and affiliates of our commercial
customers. We also provide cash management, Automated Clearing House,
safe-deposit box, lock box and online banking services.
We have experienced significant internal growth since our inception while
consistently increasing profitability and maintaining asset quality at a level
which we believe compares favorably to our peer group. For the period from
December 31, 1994 to June 30, 1999:
- our loans, assets and deposits increased at compounded annual growth
rates of 35%, 31%, and 32%, respectively;
- our shareholders' equity increased at a compounded annual growth rate of
26%;
- our net income increased at a compounded annual growth rate of 30%; and
- our net loan charge-offs to average loans ratio averaged 0.06%.
We believe we are able to compete effectively in our market because we
stress personal service and our officers and senior management maintain close
working relationships and personal contact with commercial customers and their
businesses. We also believe that our management structure enables us to react to
customer requests for loan and deposit services more quickly than our larger
competitors. We have significant experience in the communities we service and we
continue to target the closely-held business and professional market.
Additionally, industry consolidation has resulted in fewer independent banks and
fewer financial service companies serving our target market niche. We believe
our growth in loans and deposits is also due to the significant number of
referrals we receive from our existing customers.
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<PAGE> 25
Our historical growth strategy has been both customer and asset driven. We
continuously seek to add customers that fit our target market. This strategy has
enabled us to attract customers whose borrowing needs have grown along with our
increasing capacity to fund our customers' loan requests. Additionally, we
increase our loan portfolio based on lending opportunities developed by our
relationship officers. We fund our loan growth by attracting deposits from our
customers, borrowing from the Federal Home Loan Bank and, to a lesser extent,
attracting wholesale deposits. Wholesale deposits are considered to be stable
deposit sources and, when overhead costs are considered, are priced at levels
below costs of alternative borrowed funds.
Our operating strategy has resulted in operating ratios comparable to our
peer banks despite our increasing investments in sales personnel and new lines
of business. We have expanded our customer relationships and controlled
operating costs by:
- operating stand-alone business units managed by personnel who share
directly in the equity appreciation of their units;
- operating a limited number of offices with a high asset base per office;
- emphasizing commercial loans which tend to be larger than retail loans;
- employing an experienced staff, many of whom are rewarded on the basis of
performance and customer service;
- improving data processing and operational systems to increase
productivity and control risk; and
- leasing facilities so that capital can be deployed more effectively to
support growth in earning assets.
Our Board of Directors is comprised primarily of business owners and
professionals who fit our target customer profile. The Board plays an active
role in our business development activities and the credit review process. Their
input and understanding of our needs, and the needs of our target customers, has
been critical in our past success and will be a vital element in our plans for
future growth.
We have historically had a low turnover of relationship officers, and it is
our policy to keep officers assigned to accounts for long periods of time. This
practice improves each officer's understanding of clients' businesses resulting
in knowledgeable credit assessments and superior customer service. Credit
analysts and other personnel support the relationship officers and all are
familiar with each assigned customer creating a "team approach" to serving
customers' needs.
ENTERPRISE MERCHANT BANC
Enterprise Merchant Banc, Inc. was first established by us in 1995 to
provide merchant banking services to closely-held businesses and their owners.
Its current operations include a minority investment in Enterprise Merchant
Banc, LLC, which focuses on providing equity capital and equity-linked debt
investments to growing companies in need of additional capital to finance
internal and acquisition-related growth. Additionally, Enterprise Merchant Banc,
Inc. receives fee income for its role as a financial advisor in capital raising
transactions as well as mergers and acquisitions. It focuses on "second stage"
and mezzanine financing for established companies rather than "seed money" for
start up operations. Due to our relatively recent entry into this business and
the long-term nature of merchant banking returns, Enterprise Merchant Banc
Inc.'s present contributions to Enterbank Holdings' revenues and net income are
minimal. We
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<PAGE> 26
believe, however, that it is well-positioned to become a significant part of our
strategy to achieve continued growth and profitability.
In order to broaden our array of merchant banking investment activities and
potential opportunities, we recently restructured our ownership and control
positions of our various merchant banking operations. As a result of this
restructuring, we maintain ownership of our wholly-owned subsidiary, Enterprise
Merchant Banc, Inc., which in turn has a minority interest in Enterprise
Merchant Banc, LLC. The minority interest in the LLC is based on a 4.9% voting
and common stock ownership interest and a 24.9% economic interest. The new
structure provides us the ability to achieve economic benefits comparable to
those we would have realized under the previous structure, yet satisfies Federal
Reserve regulations concerning ownership and control.
ENTERPRISE FINANCIAL ADVISORS
Enterprise Financial Advisors was organized as a division of Enterprise
Bank in late 1997 to provide fee-based personal and corporate financial
consulting and trust services to our target market. Personal financial
consulting includes estate planning, investment management, retirement planning,
trust services and custodial services. Corporate consulting services are focused
in the areas of retirement plans, management compensation and management
succession issues. Some investment management services are provided through
Argent Capital Management, a money management company that invests principally
in large capitalization companies. We own an 8% interest in Argent Capital
Management. Enterprise Financial Advisors has been an integral part of Enterbank
Holdings' growth and we believe that it will play a key role in our strategy to
achieve continued growth and profitability as it continues to expand the
products and services it offers to customers.
As part of the organization of Enterprise Financial Advisors, we entered
into solicitation and referral agreements with Moneta Group, Inc., a nationally
recognized firm in the financial planning industry. Under the agreements, Moneta
provides assistance in staffing, training, marketing and regulatory compliance
and in return receives a share of the gross margin generated by Enterprise
Financial Advisors for planning and trust services. In exchange for customer
referrals, Moneta receives compensation in the form of Enterbank stock options.
The agreements are intended to leverage the trust powers of Enterprise Bank with
the established expertise and marketing power of Moneta, thereby enabling
Enterprise Financial Advisors to offer a full range of products and services
with the depth and expertise of a large financial planning firm.
EBH TRUST
EBH Trust is a Delaware business trust. EBH Trust will exist solely to:
- Issue and sell its common securities to us;
- Issue and sell its preferred securities to the public;
- Use the proceeds from the sale of its common securities and preferred
securities to purchase the junior subordinated debentures from us;
- Distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the preferred and common securities;
and
- Engage in other activities that are necessary or incidental to these
purposes.
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<PAGE> 27
DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities and the common securities will be issued under the
terms of the trust agreement of EBH Trust. The trust agreement will be qualified
as an indenture under the Trust Indenture Act. Initially, Wilmington Trust
Company will be the property trustee and will act as trustee for the purpose of
complying with the Trust Indenture Act. The terms of the preferred securities
will include those stated in the trust agreement of EBH Trust and those made
part of the trust agreement by the Trust Indenture Act. The following is a
summary of the material terms and provisions of the preferred securities and the
trust agreement. Prospective investors in the preferred securities are urged to
read all the provisions of the trust agreement, including the definitions in the
trust agreement, and the Trust Indenture Act. The form of the trust agreement
has been filed as an exhibit to the registration statement of which this
prospectus is a part.
GENERAL OVERVIEW
Under the terms of the trust agreement of EBH Trust, the administrative
trustees will issue the preferred securities and the common securities,
collectively, the trust securities. The preferred securities will represent
preferred undivided beneficial interests in the assets of EBH Trust and the
holders of the preferred securities will be entitled to a preference in most
circumstances regarding distributions and amounts payable on redemption or
liquidation over the common securities of EBH Trust, as well as other benefits
as described in the trust agreement.
The preferred securities will rank pari passu, and payments will be made
thereon pro rata, with the common securities of EBH Trust except as described
under "Subordination of Common Securities of EBH Trust Held by Enterbank" below.
Legal title to the junior subordinated debentures will be held by the
property trustee in trust for the benefit of the holders of the trust
securities. The preferred securities guarantee executed by Enterbank for the
benefit of the holders of the preferred securities will be a guarantee on a
subordinated basis and will not guarantee payment of distributions or amounts
payable on redemption or liquidation of the preferred securities if EBH Trust
does not have funds on hand available to make the payments. See "Description of
Preferred Securities Guarantee." If an event of default under the indenture has
occurred and is continuing and the default is attributable to Enterbank's
failure to pay interest or principal on the junior subordinated debentures on
the due date, a holder of preferred securities may institute a legal proceeding
directly against Enterbank for payment of principal and interest on the junior
subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the preferred securities of the holder. This action is
referred to in this discussion as a direct action. See "Description of the
Junior Subordinated Debentures -- Enforcement of Rights by Holders of Preferred
Securities" and "Relationship Among the Preferred Securities, the Junior
Subordinated Debentures and the Preferred Securities Guarantee."
QUARTERLY DISTRIBUTION PAYMENTS AND EXTENSIONS ON DISTRIBUTION PAYMENTS
PAYMENT OF DISTRIBUTIONS. Distributions on the preferred securities will be
payable at the annual rate of % of the stated liquidation amount of $8,
payable quarterly in arrears on the 15th day of March, June, September and
December in each year, beginning December 15, 1999. The amount of each
distribution due will include amounts accrued
24
<PAGE> 28
and unpaid through the date the distribution is due. Distributions on the
preferred securities will be payable to the holders as they appear on the
register of EBH Trust on the relevant record date. Until the preferred
securities do not remain in book-entry form, the relevant record date will be
one business day prior to the relevant distribution date and, in the event the
preferred securities are not in book-entry form, the relevant record date will
be the first day of the month in which the relevant distribution date occurs.
The right to receive distributions will be cumulative from the date of original
issuance of the preferred securities.
The amount of distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any payment
date is not a business day, the distribution will be made on the next business
day, and without any interest or other payment regarding any delay. As used in
this prospectus, a business day means any day other than a Saturday or a Sunday,
or a day on which banking institutions in Delaware or Missouri are authorized or
required by law or executive order to remain closed.
The only funds of EBH Trust available for distribution to its preferred
securities holders will be payments by Enterbank under the junior subordinated
debentures. See "Description of Junior Subordinated Debentures." If Enterbank
does not make interest payments on the junior subordinated debentures, the
property trustee will not have funds available to pay distributions on the
preferred securities. The payment of distributions, if and to the extent EBH
Trust has legally available funds and cash sufficient to make payments, is
guaranteed by Enterbank. For further information, see "Description of the
Preferred Securities Guarantee."
EXTENSION PERIOD. Unless a debenture event of default has occurred and is
continuing, Enterbank has the right under the indenture to defer interest
payments on the junior subordinated debentures at any time for a period not
exceeding 20 consecutive quarters regarding each extension period. However, no
extension period may extend beyond the stated maturity of the junior
subordinated debentures. As a consequence of any extension election by
Enterbank, quarterly distributions on the preferred securities will be deferred
by EBH Trust during any extension period. Distributions to which holders of
preferred securities are entitled will accumulate additional amounts at the rate
per year of % thereof, compounded quarterly from the relevant distribution
date. The term distributions as used in this prospectus includes any additional
accumulated amounts.
During any extension period, Enterbank may not (1) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment regarding, any of its capital stock which includes common
and preferred stock, or (2) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities of Enterbank that
rank pari passu with or junior in interest to the junior subordinated debentures
or make any preferred securities guarantee payments regarding any preferred
securities guarantee by Enterbank of the debt securities of any subsidiary of
Enterbank if the preferred securities guarantee ranks pari passu with or junior
in interest to the junior subordinated debentures. These restrictions do not
apply to:
- dividends or distributions in capital stock of Enterbank;
- any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any plan of
this type in the future, or the redemption or repurchase of any rights
pursuant to this type of plan;
25
<PAGE> 29
- payments under the preferred securities guarantee of Enterbank; or
- purchases of common stock for issuance under any contracts, benefit plans
or similar arrangements with or for its directors, officers, employees or
consultants or a dividend reinvestment or shareholder stock purchase
plan.
Prior to the termination of any extension period, Enterbank may further
extend the extension period, provided that the extension does not cause the
extension period to exceed 20 consecutive quarters 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, and subject to the
above limitations, Enterbank may elect to begin a new extension period. There is
no limitation on the number of times that Enterbank may elect to begin an
extension period.
Enterbank has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the junior
subordinated debentures.
REDEMPTION -- MANDATORY AND OPTIONAL RIGHTS OF ENTERBANK
MANDATORY REDEMPTION OF PREFERRED SECURITIES. Upon the repayment or
redemption at any time, in whole or in part, of any junior subordinated
debentures, the proceeds from the repayment or redemption will be applied by the
property trustee to redeem a like amount of the trust securities at the
redemption price, as defined below. For more information, see "Description of
the Junior Subordinated Debentures -- Redemption." If less than all of the
junior subordinated debentures are to be repaid or redeemed on a redemption
date, then the proceeds will be allocated to the redemption of the preferred
securities and common securities pro rata.
OPTIONAL REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES. Enterbank will have
the right to redeem the junior subordinated debentures (1) beginning on
, 2004, in whole at any time or in part from time to time
at a redemption price equal to the accrued and unpaid interest on the junior
subordinated debentures redeemed to the date fixed for redemption, plus 100% of
the principal amount of the junior subordinated debentures, or (2) at any time,
in whole, but not in part, upon a tax event, an investment company event or a
capital treatment event as defined in the following paragraph. The redemption
price will be equal to the accrued and unpaid interest on the redeemed junior
subordinated debentures, plus 100% of the principal amount. These payments will
be subject to receipt of prior approval by the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve. See
"Description of the Junior Subordinated Debentures -- Redemption."
TAX EVENT REDEMPTION, INVESTMENT COMPANY EVENT REDEMPTION, CAPITAL
TREATMENT EVENT REDEMPTION OR DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES. If
a tax event, an investment company event or a capital treatment event occurs
after original issuance of the preferred securities and is continuing, Enterbank
has the right to redeem the junior subordinated debentures in whole. If a
redemption of the junior subordinated debentures occurs, Enterbank would also
cause a mandatory redemption of the preferred securities and common securities
in whole at the redemption price, as defined below, within 90 days following the
occurrence of any of these events. In each case the redemption would be subject
to receipt of prior approval by the Federal Reserve if then required under its
applicable capital guidelines or policies. If any of these events has occurred
and is continuing, and Enterbank does not elect to redeem the junior
subordinated debentures
26
<PAGE> 30
and cause a mandatory redemption of the trust securities or to liquidate EBH
Trust and cause the junior subordinated debentures to be distributed to holders
of the trust securities in liquidation of EBH Trust, the trust securities will
remain outstanding. Also, additional sums, as defined below, may be payable on
the junior subordinated debentures.
A tax event requires the receipt by Enterbank and EBH Trust of a legal
opinion to the effect that, as a result of any amendment to, including any
announced prospective change in, the laws or regulations of the United States or
any political subdivision or taxing authority of the United States, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying the tax laws or regulations, there is more than an
insubstantial risk that:
- EBH Trust is, or will be within 90 days of the date of the opinion,
subject to United States federal income tax regarding income received or
accrued on the junior subordinated debentures;
- interest payable by Enterbank on the junior subordinated debentures is
not, or within 90 days of the opinion, will not be, deductible by
Enterbank, in whole or in part, for United States federal income tax
purposes; or
- EBH Trust is, or will be within 90 days of the date of the opinion,
subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges.
An investment company event requires the receipt by Enterbank and EBH Trust
of a legal opinion to the effect that, as a result of any change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, EBH
Trust is or will be considered an investment company required to be registered
under the Investment Company Act.
A capital treatment event requires the receipt by Enterbank and EBH Trust
of a legal opinion to the effect that, as a result of any amendment to,
including any proposed change in, the laws or regulations of the United States
or any of its political subdivisions, or as a result of any official action or
judicial decision interpreting the laws or regulations, there is more than an
insubstantial risk that Enterbank's ability to treat the preferred securities as
core capital or its equivalent for purposes of the Federal Reserve capital
adequacy guidelines is impaired.
Additional sums means the additional amounts as may be necessary to be paid
by Enterbank on the junior subordinated debentures so that the amount of
distributions payable by EBH Trust on the outstanding trust securities will not
be reduced as a result of any additional taxes, duties, assessments and other
governmental charges to which EBH Trust has become subject.
Like amount means (1) regarding a redemption of trust securities, trust
securities having a liquidation amount, as defined below, 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 these classes and the proceeds of which will be used to
pay the redemption price of the trust securities, and (2) regarding a
distribution of junior subordinated debentures to holders of trust securities in
connection with a dissolution or liquidation of EBH Trust, junior subordinated
debentures having a
27
<PAGE> 31
principal amount equal to the liquidation amount of the trust securities of the
holder to whom the junior subordinated debentures are distributed.
Liquidation amount means the stated amount of $8 per trust security.
Redemption price means, regarding any trust security, the liquidation
amount of the trust security, plus accumulated and unpaid distributions to the
redemption date, allocated on a pro rata basis, based on liquidation amounts,
among the trust securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
Subject to Enterbank's having received prior approval of the Federal
Reserve, Enterbank will have the right at any time to liquidate EBH Trust and,
after satisfaction of the liabilities of creditors of EBH Trust as provided by
applicable law, cause the junior subordinated debentures to be distributed to
the holders of trust securities in liquidation of EBH Trust. After the
liquidation date fixed for any distribution of junior subordinated debentures
for preferred securities:
- the preferred securities will no longer be deemed to be outstanding;
- the depositary or its nominee, as the record holder of the preferred
securities, will receive a registered global certificate or certificates
representing the junior subordinated debentures to be delivered upon the
distribution; and
- any certificates representing preferred securities not held by the
depositary or its nominee will be deemed to represent the junior
subordinated debentures having a principal amount equal to the
liquidation amount of the preferred securities, and bearing interest
equal to the accrued and unpaid distributions on the preferred
securities, until the certificates are presented to the administrative
trustees or their agent for reissuance.
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 the preferred securities if a dissolution and liquidation of EBH
Trust were to occur. Accordingly, the preferred securities that an investor may
purchase, or the junior subordinated debentures that the investor may receive on
dissolution and liquidation of EBH Trust, may trade at a discount to the price
that the investor paid to purchase the preferred securities. If the junior
subordinated debentures are distributed, Enterbank will use reasonable efforts
to list them on a national securities exchange or quotation system.
REDEMPTION PROCEDURES
Preferred securities redeemed on each redemption date will be redeemed at
the redemption price with the 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 EBH Trust has funds on hand available for the payment of the
redemption price. See "-- Subordination of Common Securities of EBH Trust Held
by Enterbank" and "Description of the Preferred Securities Guarantee."
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of trust securities at the
holder's registered address. Unless EBH Trust defaults in payment of the
applicable redemption price, on and
28
<PAGE> 32
after the redemption date, distributions will cease to accrue on the preferred
securities called for redemption.
If EBH Trust gives a notice of redemption regarding the preferred
securities, then, by 12:00 noon, St. Louis, Missouri time, on the redemption
date, the property trustee will pay the redemption price to the depositary, as
the record holder of the preferred securities. The depositary thereafter will
credit the redemption price to the participants for whom it holds the preferred
securities. See "Book-Entry Issuance." If the preferred securities are no longer
in book-entry form, the property trustee, to the extent funds are available,
will deposit with the paying agent for the preferred securities funds sufficient
to pay the aggregate redemption price. The property trustee will give the paying
agent irrevocable instructions and authority to pay the redemption price upon
surrender of certificates evidencing the preferred securities. Notwithstanding
the foregoing, distributions payable on or prior to the redemption date will be
payable to the holders of the preferred securities on the relevant record dates
for the related distribution dates. If notice of redemption has been given and
funds deposited as required, then upon the date of the deposit, all rights of
the holders of the preferred securities will cease, except the right of the
holders of the preferred securities to receive the redemption price, but without
interest on the redemption price, and the preferred securities will cease to be
outstanding. If any date fixed for redemption of the preferred securities is not
a business day, then payment of the redemption price payable on the date will be
made on the next business day and without any interest or other payment for the
delay. If, however, the business day falls in the next calendar year, the
payment will be made on the immediately preceding business day. If payment of
the redemption price in respect of preferred securities called for redemption is
improperly withheld or refused and not paid either by EBH Trust or by Enterbank
under the preferred securities guarantee, distributions on the preferred
securities will continue to accrue at the then applicable rate, from the
redemption date originally established by EBH Trust for the preferred securities
to the date the redemption price is actually paid. In this case the actual
payment date will be the date fixed for redemption for purposes of calculating
the redemption price. See "Description of the Preferred Securities Guarantee."
Subject to applicable law, including, without limitation, federal
securities laws, Enterbank may at any time and from time to time purchase
outstanding preferred securities by tender, in the open market or by private
agreement.
Payment of the redemption price on the preferred securities and any
distribution of junior subordinated debentures to holders of preferred
securities will be made to the applicable record holders as they appear on the
register of the preferred securities on the relevant record date, which date
will be one business day prior to the relevant redemption date; provided,
however, that if any preferred securities are not in book-entry form, the
relevant record date for them will be a date at least 15 days prior to the
redemption date. In the case of a liquidation, the record date will be
established by the property trustee and be no more than 45 days before the
liquidation date.
If less than all of the trust securities are to be redeemed on a redemption
date, then the aggregate redemption price for the trust securities to be
redeemed will be allocated pro rata to the preferred securities and common
securities based upon the relative liquidation amounts of these classes. The
particular outstanding preferred securities to be redeemed will be selected by
any method as the property trustee deems fair and appropriate. This method may
provide for the selection for redemption of portions equal to $8 or an integral
multiple of $8 of the liquidation amount of preferred securities. The property
trustee will promptly notify the trust securities registrar in writing of the
preferred securities selected
29
<PAGE> 33
for redemption and, in the case of any preferred securities selected for partial
redemption, the liquidation amount thereof to be redeemed. For all purposes of
the trust agreement, unless the context otherwise requires, all provisions
relating to the redemption of preferred securities will relate to the portion of
the aggregate liquidation amount of preferred securities which has been or is to
be redeemed.
SUBORDINATION OF COMMON SECURITIES OF EBH TRUST HELD BY ENTERBANK
Payment of distributions on, and the redemption price of, the preferred
securities and common securities will be made pro rata based on the liquidation
amounts of these securities. However, if on any distribution date or redemption
date a debenture event of default has occurred and is continuing, no
distributions on or redemption of the common securities will be made. Further,
no other payment on account of the redemption, liquidation or other acquisition
of the common securities will be made unless payment in full in cash of all
distributions payable on all of the outstanding preferred securities are made,
or in the case of redemption the full redemption price on all of the outstanding
preferred securities then called for redemption, has been made or provided for.
All funds available to the property trustee will 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 under the trust agreement resulting
from a debenture event of default, Enterbank as holder of the common securities
will be deemed to have waived any right to act regarding any event of default
until the effects of all events of default have been cured, waived or otherwise
eliminated. Until any events of default have been so cured, waived or otherwise
eliminated, the property trustee will act solely on behalf of the holders of the
preferred securities and not on behalf of Enterbank as 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.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Enterbank will have the right at any time to terminate EBH Trust and cause
the junior subordinated debentures to be distributed to the holders of the
preferred securities. This right is subject to Enterbank having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. See "Distribution of the Junior
Subordinated Debentures" above.
In addition, under the trust agreement, EBH Trust will automatically
terminate upon expiration of its term and will earlier terminate on the first to
occur of: (1) events of bankruptcy, dissolution or liquidation of Enterbank; (2)
delivery by Enterbank of written direction to the property trustee to terminate
EBH Trust, which direction is optional and wholly within the discretion of
Enterbank; (3) redemption of all of the preferred securities as described under
"-- Redemption -- Mandatory and Optional Rights of Enterbank;" and (4) the entry
of an order for the dissolution of EBH Trust by a court of competent
jurisdiction.
If an early termination occurs as described in clause (1), (2) or (4) above
or upon the expiration of the term of EBH Trust, it will be liquidated by the
trustees as expeditiously as the trustees determine to be possible. The
liquidation will be made after satisfaction of liabilities to creditors of EBH
Trust as provided by applicable law. In the liquidation, holders of the trust
securities will receive a like amount of the junior subordinated debentures,
unless this distribution is determined by the property trustee not
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to be practical. If the property trustee determines that a distribution of the
junior subordinated debentures is not practical, then the holders of preferred
securities will be entitled to receive an amount equal to the liquidation amount
of $8 per trust security plus accrued and unpaid distributions thereon to the
date of payment. This amount, payable out of the assets of EBH Trust available
for distribution, is referred to as the liquidation distribution. If the
liquidation distribution can be paid only in part because EBH Trust has
insufficient assets available to pay the full aggregate liquidation
distribution, then the amounts payable directly by EBH Trust on the preferred
securities will be paid on a pro rata basis. The holders of the common
securities will be entitled to receive distributions upon a liquidation pro rata
with the holders of the preferred securities, except that if a debenture event
of default has occurred and is continuing, the preferred securities will have a
priority over the common securities.
Under current United States federal income tax law and interpretations and
assuming, as expected, EBH Trust is treated as a grantor trust, a distribution
of the junior subordinated debentures should not be a taxable event to holders
of the preferred securities. Should there be a change in law, a change in legal
interpretation, a tax event or other circumstances, however, the distribution
could be a taxable event to holders of the preferred securities. See "Material
Federal Income Tax Consequences." If Enterbank elects neither to redeem the
junior subordinated debentures prior to maturity nor to liquidate EBH Trust and
distribute the junior subordinated debentures to holders of the preferred
securities, the preferred securities will remain outstanding until the repayment
of the junior subordinated debentures.
If Enterbank elects to liquidate EBH Trust and cause the junior
subordinated debentures to be distributed to holders of the preferred securities
in liquidation of EBH Trust, Enterbank will continue to have the right to
shorten the maturity of the junior subordinated debentures under most
circumstances. See "Description of the Junior Subordinated Debentures -- General
Overview."
EVENTS OF DEFAULT; NOTICE
Any one of the following events that has occurred and is continuing
constitutes an event of default under the trust agreement:
- the occurrence of a debenture event of default under the indenture, see
"Description of the Junior Subordinated Debentures -- Indenture Events of
Default"; or
- default by EBH Trust in the payment of any distribution when it becomes
due and payable, and continuation of the default for a period of 30 days;
or
- default by EBH Trust in the payment of any redemption price of any trust
security when it becomes due and payable; or
- default in the performance, or breach, in any material respect, of any
covenant or warranty of the property trustee in the trust agreement,
other than a default or breach in the performance of a covenant or
warranty which is addressed in the previous two points above, and
continuation of the default or breach, for a period of 60 days after
there has been given, by registered or certified mail, to the property
trustee by the holders of at least 25% in aggregate liquidation amount of
the outstanding preferred securities, a written notice specifying the
default or breach
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and requiring it to be remedied and stating that the notice is a "Notice of
Default" under the trust agreement; or
- the occurrence of events of bankruptcy or insolvency regarding the
property trustee and the failure by Enterbank to appoint a successor
property trustee within 60 days thereof.
Within five business days after the occurrence of any event of default
actually known to the property trustee, the property trustee is required to
transmit notice of the event of default to the holders of the preferred
securities, the administrative trustees and Enterbank, unless the event of
default has been cured or waived. Enterbank and the administrative trustees are
required to file annually with the property trustee a certificate as to whether
they are in compliance with all the conditions and covenants applicable to them
under the trust agreement.
If a debenture event of default has occurred and is continuing, the
preferred securities will have a preference over the common securities upon
termination of EBH Trust as described above. See "-- Liquidation Distribution
Upon Termination." Upon a debenture event of default, unless the principal of
all the junior subordinated debentures has already become due and payable,
either the property trustee or the holders of not less than 25% in aggregate
principal amount of outstanding junior subordinated debentures may declare all
of the junior subordinated debentures to be due and payable immediately. Written
notice must be given to Enterbank, and to the property trustee, if given by
holders of the junior subordinated debentures. If the property trustee or the
holders of the junior subordinated debentures fail to declare the principal of
all of the junior subordinated debentures due and payable upon a debenture event
of default, the holders of at least 25% in liquidation amount of the preferred
securities then outstanding will have the right to declare the junior
subordinated debentures immediately due and payable. In either event, payment of
principal and interest on the junior subordinated debentures will remain
subordinated to the extent provided in the indenture. In addition, holders of
the preferred securities have to bring a direct action as discussed below. See
"Description of the Junior Subordinated Debentures -- Enforcement of Rights by
Holders of Preferred Securities."
REMOVAL OF TRUSTEES
Unless a debenture event of default has occurred and is continuing, any
trustee may be removed at any time by the holder of the common securities of EBH
Trust. If a debenture event of default has occurred and is continuing, the
property trustee, Delaware trustee or both may be removed by the holders of a
majority in liquidation amount of the outstanding preferred securities. In no
event will the holders of the preferred securities have the right to vote to
appoint, remove or replace the administrative trustees, which voting rights are
vested exclusively in Enterbank as the holder of the common securities. No
resignation or removal of a trustee and no appointment of a successor trustee
will be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the trust agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an event of default has occurred and is continuing, at any time, for
the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of trust property may at the time be located,
the holders of the common securities and the administrative trustees have power
to appoint one or more persons either
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to act as (1) a co-trustee, jointly with the property trustee, of all or any
part of the trust property, or (2) to act as separate trustee of any such
property. In either case these trustees will have the powers which may be
provided in the instrument of appointment, and will have vested in them any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the trust agreement. In case a debenture event of default has
occurred and is continuing, the property trustee alone will have power to make
the appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Generally, any person or successor to any of the trustees of EBH Trust may
be a successor trustee to any of the trustees, including a successor resulting
from a merger or consolidation. However, any successor trustee must meet all of
the qualifications and eligibility standards to act as a trustee to EBH Trust.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF EBH TRUST
EBH 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 trust or other person, except as described
below. EBH Trust may, at the request of Enterbank, with the consent of the
administrative trustees and without the consent of the holders of the preferred
securities, the property trustee or the Delaware trustee, undertake the
transactions described above; provided, that:
- the successor entity either (a) expressly assumes all of the obligations
of EBH Trust regarding the preferred securities or (b) substitutes for
the preferred securities other securities having substantially the same
terms as the preferred securities, so long as the successor securities
rank the same as the preferred securities rank in priority regarding
distributions and payments upon liquidation, redemption and otherwise;
- Enterbank expressly appoints a trustee of the successor entity possessing
substantially the same powers and duties as the property trustee as the
holder of the junior subordinated debentures;
- any transaction of this kind does not adversely affect the rights,
preferences and privileges of the holders of the preferred securities,
including any successor securities, in any material respect;
- the successor entity has a purpose identical to that of EBH Trust;
- the successor securities will be listed or traded on any national
securities exchange or other organization on which the preferred
securities may then be listed;
- prior to the transaction, Enterbank has received a legal opinion from
independent counsel to EBH Trust experienced in such matters to the
effect that (a) the transaction 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 (b)
following any transaction of this kind, neither EBH Trust nor the
successor entity will be required to register as an investment company
under the Investment Company Act; and
- Enterbank or any permitted successor or designee owns all of the common
securities of the successor entity and guarantees the obligations of the
successor
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entity under the successor securities at least to the extent provided by
the preferred securities guarantee. Notwithstanding the foregoing, EBH
Trust will not, except with the consent of holders of 100% in liquidation
amount of the preferred securities, enter into any transaction of this
kind, or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if the transaction would cause EBH Trust or the
successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except in certain limited circumstance described below and under
"Description of the Preferred Securities Guarantee -- Amendments and
Assignment", in general, the holders of the preferred securities will have no
voting rights.
The trust agreement may be amended from time to time by Enterbank and the
trustees, without the consent of the holders of the trust securities:
- 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 regarding matters or questions arising under the
trust agreement, which are not inconsistent with the other provisions of
the trust agreement; or
- to modify, eliminate or add to any provisions of the trust agreement to
the extent that is necessary to ensure that EBH Trust will be classified
for United States federal income tax purposes as a grantor trust at all
times that any trust securities are outstanding or to ensure that EBH
Trust will not be required to register as an investment company under the
Investment Company Act.
Provided, however, that in the case of the first point above, this action
will not adversely affect in any material respect the interests of any holder of
trust securities, and any amendments of the trust agreement will become
effective when notice is given to the holders of the trust securities.
The trust agreement may be amended by the trustees and Enterbank (1) with
the consent of holders representing not less than a majority of the aggregate
liquidation amount of the outstanding trust securities, and (2) upon receipt by
the trustees of an opinion of counsel to the effect that the amendment or the
exercise of any power granted to the trustees in accordance with the amendment
will not affect EBH Trust's status as a grantor trust for United States federal
income tax purposes or EBH Trust's exemption from status as an investment
company under the Investment Company Act. However, without the consent of each
holder of trust securities, the trust agreement may not be amended to (1) 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 (2) restrict the right of a
holder of trust securities to institute suit for the enforcement of any payment
of distributions afterwards.
For the time that any junior subordinated debentures are held by the
property trustee, the trustees will not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the indenture trustee, or executing any trust or
power conferred on the indenture trustee regarding the junior
subordinated debentures;
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- waive any past default that is waivable under the indenture;
- exercise any right to rescind or annul a declaration that the principal
of all the junior subordinated debentures will be due and payable; or
- consent to any amendment, modification or termination of the indenture or
the junior subordinated debentures, where this consent is required,
without, in each case, obtaining the prior approval of the holders of a
majority in aggregate liquidation amount of all outstanding preferred
securities. However, where a consent under the indenture would require
the consent of each affected holder of junior subordinated debentures,
this consent may not be given by the property trustee without the prior
consent of each holder of the preferred securities. The trustees will 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
each holder of the preferred securities of any notice of default
regarding the junior subordinated debentures. In addition to obtaining
these approvals of the holders of the preferred securities, prior to
taking any of the above actions, the trustees will obtain an opinion of
counsel stating that EBH Trust will not, as a consequence of the proposed
action by the property trustee, cease to be classified as a grantor trust
and will not be classified as an association taxable as a corporation for
United States federal income tax purposes on account of the action.
Any required approval of holders of the preferred securities may be given
at a meeting of holders of preferred securities convened for this purpose or
under written consent. The property trustee will cause a notice of any meeting
at which holders of the preferred securities are entitled to vote, or of any
matter upon which action by written consent of the holders is to be taken, to be
given to each holder of record of the preferred securities in the manner set
forth in the trust agreement.
No vote or consent of the holders of the preferred securities will be
required for EBH Trust to redeem and cancel the preferred securities in
accordance with the trust agreement.
Any of the preferred securities that are owned by Enterbank, the trustees
or any affiliate of Enterbank or any trustees, will, for purposes of the vote or
consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The preferred securities will be represented by one or more global
certificates registered in the name of the depositary or its nominee. Beneficial
interests in the preferred securities will be shown on, and transfers will be
effected only through, records maintained by participants in the depositary.
Except as described below, preferred securities in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance."
A global security will be exchangeable for preferred securities registered
in the names of persons other than the depositary or its nominee only if:
- the depositary notifies Enterbank that it is unwilling or unable to
continue as a depositary for the global security and no successor
depositary has been appointed, or if at any time the depositary ceases to
be a clearing agency registered under the
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Securities Exchange Act of 1934, at a time when the depositary is
required to be so registered to act as a depositary;
- Enterbank in its sole discretion determines that the global security will
be so exchangeable; or
- there has occurred and is continuing an event of default under the
indenture. Any global security that is exchangeable under the preceding
sentence will be exchangeable for definitive certificates registered in
the names which the depositary directs. It is expected that the
instructions will be based upon directions received by the depositary
regarding ownership of beneficial interests in the global security. In
the event that preferred securities are issued in certificated form, they
will be in denominations of $8 or integral multiples of $8 and may be
transferred or exchanged at the offices described below.
Unless and until it is exchanged in whole or in part for the individual
preferred securities, the global preferred security may not be transferred
except (1) as a whole by the depositary to a nominee of the depositary or by a
nominee of the depositary to the depositary or (2) another nominee of the
depositary or (3) by the depositary or any nominee to a successor depositary or
any nominee of the successor.
Payments on preferred securities represented by a global security will be
made to the depositary, as the depositary for the preferred securities. In the
event the preferred securities are issued in certificated form, distributions
will be payable, the transfer of the preferred securities will be registrable,
and preferred securities will be exchangeable for preferred securities of other
denominations of a like aggregate liquidation amount, at the corporate office of
the property trustee, or at the offices of any paying agent or transfer agent
appointed by the administrative trustees. However, payment of any distribution
may be made at the option of the administrative trustees by check mailed to the
address of the persons entitled to payments or by wire transfer. In addition, if
the preferred securities are issued in definitive form, the record dates for
payment of distributions will be the first day of the month in which the
relevant distribution date occurs. For a description of the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemptions and other notices and other matters, see "Book-Entry Issuance."
Upon the issuance of a global preferred security, and the deposit of the
global preferred security with or on behalf of the depositary, the depositary
will credit, on its book-entry registration and transfer system, the respective
aggregate liquidation amounts of the individual preferred securities represented
by the global preferred security to persons that have accounts with the
depositary. The accounts will be designated by the dealers, underwriters or
agents regarding the preferred securities. Ownership of beneficial interests in
a global preferred security will be limited to participants or persons that may
hold interests through participants. Ownership of beneficial interests in the
global preferred security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the depositary or its
nominee and the records of participants regarding interests of persons who hold
through participants. The laws of some states require that some purchasers of
securities in those states take physical delivery of the securities in
certificated form. The limits, under these laws, may impair the ability to
transfer beneficial interests in a global preferred security.
For the time that the depositary for a global preferred security, or its
nominee, is the registered owner of the global preferred security, this
registered owner will be considered
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the sole owner or holder of the preferred securities represented by the global
preferred security for all purposes under the trust agreement of EBH Trust.
Except as provided below, owners of beneficial interests in a global preferred
security will not be entitled to have any of the individual preferred securities
represented by the global preferred security registered in their names, will not
receive or be entitled to receive physical delivery of any the preferred
securities in certificated form and will not be considered the owners or holders
thereof.
None of Enterbank, the property trustee, any paying agent, or the
securities registrar for the preferred securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the global preferred security or
for maintaining, supervising or reviewing any records relating to the beneficial
ownership interests.
Enterbank expects that the depositary, upon receipt of any payment of the
liquidation amount or distributions in respect of a permanent global preferred
security, immediately will credit participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the aggregate
liquidation amount of the global preferred security as shown on the records of
the depositary or its nominee. Enterbank also expects that payments by
participants to owners of beneficial interests in the global preferred security
held through the participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in street name. The payments will be the
responsibility of the participants.
If the depositary for the preferred securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by Enterbank within 90 days, EBH Trust will issue individual preferred
securities in exchange for the global preferred security. In addition, EBH Trust
may at any time in its sole discretion, subject to any limitations described in
this prospectus relating to the preferred securities, determine not to have any
preferred securities represented by one or more global preferred securities. In
this event, Enterbank will issue individual preferred securities in exchange for
the global preferred security or securities representing the preferred
securities. Further, if EBH Trust specifies, an owner of a beneficial interest
in a global preferred security representing preferred securities may receive
individual preferred securities in exchange for the beneficial interests,
subject to any limitations described in this prospectus. In any such instance, a
beneficial interest owner in a global preferred security will be entitled to
physical delivery of individual preferred securities represented by the global
preferred security equal in liquidation amount to the beneficial interest, and
to have the preferred securities registered in its name. Individual preferred
securities issued will be issued in denominations, unless otherwise specified by
EBH Trust, of $8 and integral multiples of $8.
PAYMENT AND PAYING AGENCY
Payments in respect of the preferred securities will be made to the
depositary, which will credit the relevant accounts at the depositary on the
applicable distribution dates. However, if any of the preferred securities are
not held by the depositary, the payments will be made by check mailed to the
address of the holder as the address appears on the register. The paying agent
will initially be the property trustee and any co-paying agent chosen by the
property trustee and acceptable to the administrative trustees and
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Enterbank. The paying agent will be permitted to resign as paying agent upon 30
days' written notice to the property trustee and Enterbank. In the event that
the property trustee is no longer the paying agent, the administrative trustees
will appoint a successor paying agent, which will be a bank or trust company
acceptable to the administrative trustees and Enterbank.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the
preferred securities. Registration of transfers of the preferred securities will
be effected without charge by or on behalf of EBH Trust, but the registrar may
require payment to cover any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. EBH 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.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than upon the occurrence and during the
continuance of an event of default, undertakes to perform only the duties which
are specifically set forth in the trust agreement. After an event of default,
the property trustee 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 powers vested in it by the trust agreement at the request of
any holder of preferred securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred. If no event
of default has occurred and is continuing and the property trustee is required
to decide between alternative causes of action, construe ambiguous provisions in
the trust agreement or is unsure of the application of any provision of the
trust agreement, and the matter is not one on which holders of the preferred
securities are entitled under the trust agreement to vote, then the property
trustee will take action as directed by Enterbank. If the property trustee is
not so directed, it will take action as it deems advisable and in the best
interests of the holders of the trust securities and will have no liability
under the trust agreement except for its own bad faith, negligence or willful
misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate EBH Trust in such a way that EBH Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes and so that the junior
subordinated debentures will be treated as indebtedness of Enterbank for United
States federal income tax purposes. In this regard, Enterbank and the
administrative trustees are authorized to take any lawful action not
inconsistent with the certificate of trust of EBH Trust or the trust agreement,
that they determine in their discretion to be necessary or desirable for these
purposes, as long as the action does not materially adversely affect the
interests of the holders of the related preferred securities. Holders of the
preferred securities have no preemptive or similar rights.
EBH Trust may not borrow money or issue debt or mortgage or pledge any of
its assets.
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DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
The junior subordinated debentures will be issued under a subordinated
indenture, dated as of , 1999, between Enterbank and
Wilmington Trust Company, as the indenture trustee. The following is a summary
of the material terms and provisions of the junior subordinated debentures and
the indenture. Prospective investors are urged to read the indenture, which has
been filed as an exhibit to the registration statement of which this prospectus
forms a part. Wherever particular defined terms of the indenture are referred to
but not defined herein, such defined terms have the same meaning as that in the
indenture. The indenture is qualified under the Trust Indenture Act.
Concurrently with the issuance of the preferred securities, EBH Trust will
invest the proceeds from the sale of the preferred securities, together with the
consideration paid by Enterbank for the common securities, in junior
subordinated debentures issued by Enterbank. The junior subordinated debentures
will be issued as unsecured debt under the indenture.
GENERAL OVERVIEW
The junior subordinated debentures will bear interest at the rate of %
per year of their principal amount, payable quarterly in arrears on the 15th day
of March, June, September and December of each year, beginning December 15,
1999, to the person in whose name each junior subordinated debenture is
registered, subject to minor exceptions, at the close of business on the
business day next preceding the interest payment date. Notwithstanding the
above, in the event that either (1) the junior subordinated debentures are held
by the property trustee and the preferred securities are no longer in book-entry
only form or (2) the junior subordinated debentures are not represented by a
global subordinated debenture, the record date for the interest payment will be
the first day of the month in which the payment is made. The amount of each
interest payment due regarding the junior subordinated debentures will include
amounts accrued and unpaid through the date the interest payment is due. It is
anticipated that, until the liquidation, if any, of EBH Trust, each junior
subordinated debenture will be held in the name of the property trustee in trust
for the benefit of the holders of the preferred securities. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on the junior subordinated debentures is not a business day, then payment of the
interest payable on that date will be made on the next business day. Accrued
interest that is not paid on the applicable interest payment date will bear
additional interest at the rate per year of % compounded quarterly. The
term interest as used in this prospectus includes quarterly interest payments,
interest on quarterly interest payments not paid on the applicable interest
payment date and additional sums, as defined below, as applicable.
The junior subordinated debentures will mature on ,
2029. This date, as it may be shortened as described below, is the stated
maturity. This date may be shortened once at any time by Enterbank before the
day which is 90 days before the scheduled maturity date to any date not earlier
than , 2004, subject to Enterbank having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. In the event that Enterbank
elects to shorten the stated maturity of the junior subordinated debentures, it
will give at least 90 days prior notice to the registered holders of the junior
subordinated
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debentures, the property trustee and the indenture trustee. The property trustee
must give notice to the holders of the trust securities of the shortening of the
stated maturity.
The junior subordinated debentures will be unsecured and will rank junior
and be subordinate in right of payment to all senior and subordinated debt (as
defined in the indenture) of Enterbank. Because Enterbank is a holding company,
the right of Enterbank to participate in any distribution of assets of
Enterprise Bank or any other subsidiary, or upon Enterprise Bank's or any other
subsidiary's liquidation or reorganization or otherwise, and thus the ability of
holders of the junior subordinated debentures to benefit indirectly from the
distribution, is subject to the prior claims of creditors of that subsidiary,
except to the extent that Enterbank may itself be recognized as a creditor of
that subsidiary. Accordingly, the junior subordinated debentures will be
effectively subordinated to all existing and future liabilities of Enterbank's
subsidiaries, and holders of junior subordinated debentures should look only to
the assets of Enterbank for payments on the junior subordinated debentures. The
indenture does not limit the incurrence or issuance of other secured or
unsecured debt of Enterbank, including senior and subordinated debt, whether
under the indenture or any existing or other indenture that Enterbank may enter
into in the future or otherwise. See "Subordination" below.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
If no debenture event of default has occurred and is continuing, Enterbank
has the right under the indenture at any time during the term of the junior
subordinated debentures to defer interest payments at any time for a period not
exceeding 20 consecutive quarters. However, no extension period may extend
beyond the stated maturity of the junior subordinated debentures. At the end of
an extension period, Enterbank must pay all interest then accrued and unpaid,
together with interest at the rate of % per year, compounded quarterly.
During an extension period, interest will continue to accrue and holders of
junior subordinated debentures will be required to accrue interest income for
United States federal income tax purposes. See "Material Federal Income Tax
Consequences -- Interest Income and Original Issue Discount."
During any extension period, Enterbank may not (1) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment regarding, any of Enterbank's capital stock or (2) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of Enterbank, including other junior subordinated
debentures, that rank pari passu with or junior in interest to the junior
subordinated debentures or make any preferred securities guarantee payments
regarding any preferred securities guarantee by Enterbank of the debt securities
of any subsidiary of Enterbank if the preferred securities guarantee ranks pari
passu with or junior in interest to the junior subordinated debentures. These
restrictions do not apply to:
- dividends or distributions in capital stock of Enterbank;
- any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any plan in the
future, or the redemption or repurchase of any rights pursuant to this
type of plan;
- payments under the preferred securities guarantee; or
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- purchases of common stock for issuance under any contracts, benefit plans
or similar arrangements with or for its directors, officers, employees or
consultants or a dividend reinvestment or shareholder stock purchase
plan.
Prior to the termination of any extension period, Enterbank may further extend
the extension period, provided that the extension does not cause the extension
period to exceed 20 consecutive quarters 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 on any interest payment date, Enterbank
may elect to begin a new extension period subject to the above requirements. No
interest will be due and payable during an extension period, except at the end
of the extension period.
If the property trustee is the only registered holder of the junior
subordinated debentures, Enterbank must give the property trustee, the
administrative trustees and the indenture trustee notice of its election of any
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 except for
the election to begin or extend the extension period or (2) the date the
administrative trustees are required to give notice to the holders of the
preferred securities 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 indenture trustee will give notice of Enterbank's election to begin or
extend a new extension period to the administrative trustees who, in turn, will
give notice to the holders of the preferred securities. There is no limitation
on the number of times that Enterbank may elect to begin an extension period.
ADDITIONAL SUMS TO BE PAID AS A RESULT OF ADDITIONAL TAXES
If EBH Trust or the property trustee is required to pay any additional
taxes, duties, assessments or other governmental charges as a result of a tax
event, Enterbank will pay as additional amounts on the junior subordinated
debentures any amounts which will be required so that the distributions payable
by EBH Trust will not be reduced as a result of any additional taxes, duties or
other governmental charges. See "Description of the Preferred Securities
- -- Redemption -- Mandatory and Optional Rights of Enterbank" for a definition of
tax event.
REDEMPTION
Subject to Enterbank's having received prior approval of the Federal
Reserve, if then required under applicable capital guidelines or policies of the
Federal Reserve, the junior subordinated debentures are redeemable prior to
maturity at the option of Enterbank (1) beginning , 2004,
in whole at any time or in part from time to time, or (2) at any time in whole,
but not in part, upon the occurrence and during the continuance of a tax event,
an investment company event or a capital treatment event, in each case at a
redemption price equal to the accrued and unpaid interest on the junior
subordinated debentures redeemed to the date fixed for redemption, plus 100% of
the principal amount of the junior subordinated debentures. See "Description of
the Preferred Securities -- Redemption -- Mandatory and Optional Rights of
Enterbank" for definitions of tax event, investment company event and capital
treatment event.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of junior subordinated
debentures to be redeemed at the holder's registered address. Unless Enterbank
defaults in payment of the redemption price, on and after the redemption date
interest will cease to accrue on the
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junior subordinated debentures or portions of the junior subordinated debentures
called for redemption.
The junior subordinated debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred Securities -- Liquidation
Distribution Upon Termination," under circumstances involving the termination of
EBH Trust, the junior subordinated debentures may be distributed to the holders
of the preferred securities and common securities in liquidation of EBH Trust
after satisfaction of liabilities to creditors of EBH Trust. If distributed to
holders of the preferred securities in liquidation, the junior subordinated
debentures will initially be issued in the form of one or more global securities
and the depositary, or any successor depositary for the preferred securities,
will act as depositary for the junior subordinated debentures. It is anticipated
that the depositary arrangements for the junior subordinated debentures would be
substantially identical to those in effect for the preferred securities. If the
junior subordinated debentures are distributed to the holders of preferred
securities upon the liquidation of EBH Trust, there can be no assurance as to
the market price of any junior subordinated debentures that may be distributed
to the holders of preferred securities. If the junior subordinated debentures
are distributed, Enterbank will use reasonable efforts to list them on a
national securities exchange or quotation system.
RESTRICTIONS ON PAYMENTS
Enterbank has restrictions on paying dividends or making payments regarding
pari passu or junior debt if:
- there has occurred any event of which Enterbank has actual knowledge that
(a) with the giving of notice or the lapse of time, or both, would
constitute a debenture event of default and (b) in respect of which
Enterbank shall not have taken reasonable steps to cure;
- Enterbank has given notice of its election of an extension period as
provided in the indenture regarding the junior subordinated debentures
and has not rescinded the notice, or the extension period, or any
extension thereof, is continuing; or
- while the junior subordinated debentures are held by EBH Trust, Enterbank
is in default regarding its payment of any obligation under the preferred
securities guarantee.
If any of the events above have occurred, Enterbank will not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment regarding, any of Enterbank's
capital stock; or
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of Enterbank, including other
junior subordinated debt, that rank pari passu with or junior in interest
to the junior subordinated debentures or make any preferred securities
guarantee payments regarding any preferred securities guarantee by
Enterbank of the debt securities of any subsidiary of Enterbank if the
preferred securities guarantee ranks pari passu or junior in interest to
the junior subordinated debentures.
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Provided, however, Enterbank may (a) declare and pay dividends or
distributions in common stock, (b) make any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under this type of plan in the future or the redemption or
repurchase of any rights under such plan, (c) make payments under the preferred
securities guarantee and (d) make purchases of common stock related to the
issuance of common stock or rights under any of Enterbank's benefit plans for
its directors, officers or employees.
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES TO SENIOR AND SUBORDINATED DEBT
OF ENTERBANK
In the indenture, Enterbank has agreed that any junior subordinated
debentures will be subordinate and junior in right of payment to all senior and
subordinated debt to the extent provided in the indenture. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization or any bankruptcy, or similar proceedings in connection with
any insolvency or bankruptcy proceeding of Enterbank, the holders of senior and
subordinated debt will first be entitled to receive payment in full of
principal, interest and premium, if any, on the senior and subordinated debt
before the holders of junior subordinated debentures will be entitled to receive
principal or interest payments on the junior subordinated debentures.
In the event of the acceleration of the maturity of any junior subordinated
debentures, the holders of all senior and subordinated debt outstanding upon
acceleration will first be entitled to receive payment in full of all amounts
due to them, including any amounts due upon acceleration, before the holders of
junior subordinated debentures will be entitled to receive any principal or
interest payments on the junior subordinated debentures. However, holders of
subordinated debt will not be entitled to receive payment of any of these
amounts to the extent that the subordinated debt is by its terms subordinated to
trade creditors.
No principal or interest payments on the junior subordinated debentures may
be made if there has occurred and is continuing a default in any payment
regarding senior and subordinated debt or an event of default regarding any
senior and subordinated debt resulting in the acceleration of the maturity of
senior and subordinated debt, or if any judicial proceeding is pending regarding
any of this type of default.
Debt as used in this discussion means regarding any person, whether
recourse is to all or a portion of the assets of the person and whether or not
contingent:
- every obligation of the person for money borrowed;
- every obligation of the person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses;
- every reimbursement obligation of the person regarding letters of credit,
bankers' acceptances or similar facilities issued for the account of the
person;
- every obligation of the person 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 the person; and
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- every obligation of the type referred to in all of the points immediately
above of another person and all dividends of another person the payment
of which, in either case, the person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise.
Senior and subordinated debt means the principal of and premium, if any,
and interest, if any, on debt of Enterbank, including interest accruing at the
time of the filing of any petition in bankruptcy or for reorganization relating
to Enterbank, whether incurred on or prior to the date of the indenture or
thereafter incurred, unless, in the instrument creating or evidencing the debt
or under which the debt is outstanding, it is provided that the obligations are
not superior in right of payment to the junior subordinated debentures or to
other debt which is pari passu with, or subordinated to, the junior subordinated
debentures.
However, senior and subordinated debt will not be deemed to include:
- any debt of Enterbank which when incurred and without respect to any
election under section 1111(b) of the United States Bankruptcy Code was
without recourse to Enterbank;
- any debt of Enterbank to any of its subsidiaries;
- any debt to any employee of Enterbank;
- any debt which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the
extent that payments made to the holders of the debt by the holders of
the junior subordinated debentures as a result of the subordination
provisions of the indenture would be greater than they otherwise would
have been as a result of any obligation of the holders to pay amounts
over to the obligees on the trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which the debt is subject;
- the preferred securities guarantee; and
- any other debt securities issued under the indenture.
The indenture places no limitation on the amount of additional senior and
subordinated debt that may be incurred by Enterbank. Enterbank expects from time
to time to incur additional indebtedness constituting senior and subordinated
debt.
DENOMINATIONS, REGISTRATION AND TRANSFER
It is anticipated that, until the liquidation, if any, of EBH Trust, each
junior subordinated debenture will be held in the name of the property trustee
in trust for the benefit of the holders of the preferred securities. However, in
the event of either a tax event, investment company event or capital treatment
event, the junior subordinated debentures in certificated form may be exchanged
and represented by global certificates registered in the name of the depositary
or its nominee. In the event of such an exchange, beneficial interests in the
junior subordinated debentures will be shown on, and transfers thereof will be
effected only through, records maintained by the depositary. Except as described
below, junior subordinated debentures in certificated form will not be issued in
exchange for the global certificates. See "Book-Entry Issuance."
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Unless and until a global subordinated debenture is exchanged in whole or
in part for the individual junior subordinated debentures, it may not be
transferred except (1) as a whole by the depositary for the global subordinated
debenture to a nominee of the depositary or (2) by the depositary to a successor
depositary selected or approved by Enterbank or (3) to any nominee of the
successor.
A global security will be exchangeable for junior subordinated debentures
registered in the names of persons other than the depositary or its nominee only
if (1) the depositary notifies Enterbank that it is unwilling or unable to
continue as a depositary for the global security and no successor depositary has
been appointed, or if at any time the depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 at a time when the
depositary is required to be so registered to act as a depositary or (2)
Enterbank in its sole discretion determines that the global security will be so
exchangeable. Any global security that is exchangeable under the preceding
sentence will be exchangeable for definitive certificates registered in the
names which the depositary directs. It is expected that the instructions will be
based upon directions received by the depositary from its participants regarding
ownership of beneficial interests in the global security. In the event that
junior subordinated debentures are issued in definitive form, the junior
subordinated debentures will be in denominations of $8 and integral multiples of
$8 and may be transferred or exchanged at the offices described below.
Payments on junior subordinated debentures represented by a global security
will be made to the depositary for the junior subordinated debentures. In the
event junior subordinated debentures are issued in definitive form, principal
and interest will be payable, the transfer of the junior subordinated debentures
will be registrable, and junior subordinated debentures will be exchangeable for
junior subordinated debentures of other denominations of a like aggregate
principal amount, at the corporate office of the indenture trustee, or at the
offices of any paying agent or transfer agent appointed by Enterbank. However,
interest payments may be made at the option of Enterbank by check mailed to the
address of the persons entitled to payments or by wire transfer. In addition, if
the junior subordinated debentures are issued in certificated form, the record
dates for interest payments will be the first day of the month in which the
payment is to be made. For a description of the depositary and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemptions and other notices and other matters, see "Book-Entry Issuance."
Enterbank will appoint the indenture trustee as securities registrar under
the indenture. 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, or a satisfactory written instrument of transfer, duly
executed, at the office of the securities registrar. Enterbank may at any time
rescind the designation of any registrar or approve a change in the location
through which any registrar acts, provided that Enterbank maintains a registrar
in the place of payment. Enterbank may at any time designate additional
registrars regarding the junior subordinated debentures.
In the event of any redemption of less than all of the junior subordinated
debentures, neither Enterbank nor the indenture trustee will be required to
issue, exchange or register the transfer of less than all of the junior
subordinated debentures during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption selecting for
redemption less than all of the junior subordinated debentures and ending at the
close of business on the day of mailing of the relevant notice of redemption.
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PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the junior subordinated
debentures will be made at the office of the indenture trustee, except that at
the option of Enterbank payment of any interest may be made, except in the case
of a global subordinated debenture, by check mailed to the address of the person
entitled to payment as the person's address appears in the securities register.
Payment of any interest on junior subordinated debentures will be made to the
person in whose name the junior subordinated debenture is registered at the
close of business on the regular record date for the interest payment. Enterbank
may at any time designate additional paying agents or rescind the designation of
any paying agent; however, Enterbank will at all times be required to maintain a
paying agent in each place of payment for the junior subordinated debentures.
Any moneys deposited with the indenture trustee or any paying agent, or
then held by Enterbank in trust, for the payment of the principal of or interest
on the junior subordinated debentures that are not applied and remain unclaimed
for two years after the principal or interest has become due and payable will,
at the request of Enterbank, be repaid to Enterbank. Thereafter, the holder of
the junior subordinated debenture will look, as a general unsecured creditor,
only to Enterbank for payment.
MODIFICATION OF INDENTURE
From time to time Enterbank and the indenture trustee may, without the
consent of the holders of the junior subordinated debentures, amend, waive or
supplement the indenture for specified purposes. These purposes may include,
among other things, curing ambiguities, defects or inconsistencies, provided
that this action does not materially adversely affect the interests of the
holders of the junior subordinated debentures or the preferred securities while
they remain outstanding, and qualifying, or maintaining the qualification of,
the indenture under the Trust Indenture Act. The indenture contains provisions
permitting Enterbank and the indenture trustee, with the consent of the holders
of not less than a majority in aggregate principal amount of the outstanding
junior subordinated debentures, to modify the indenture in a manner affecting
the rights of the holders of the junior subordinated debentures; provided, that,
the modification may not, without the consent of the holder of each outstanding
junior subordinated debenture:
- change the stated maturity of the junior subordinated debentures or
extend the time of payment of interest on them, except as described under
"Description of the Junior Subordinated Debentures -- General Overview"
and "-- Option to Extend Interest Payment Period," or reduce the
principal amount thereof or the rate of interest thereon; or
- reduce the percentage of principal amount of junior subordinated
debentures, the holders of which are required to consent to any such
modification of the indenture. However, while any of the preferred
securities remain outstanding, (1) no modification may be made that
adversely affects the holders of the preferred securities in any material
respect, (2) no termination of the indenture may occur, and (3) no waiver
of any debenture 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
preferred securities, until the principal and interest of the junior
subordinated debentures have been paid in full and other conditions are
satisfied.
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INDENTURE EVENTS OF DEFAULT
The indenture provides that any one or more of the following described
events regarding the junior subordinated debentures that has occurred and is
continuing constitutes a debenture event of default:
- failure for 30 days to pay any interest on the junior subordinated
debentures, when due, subject to the deferral of any due date in the case
of an extension period;
- failure to pay any principal on the junior subordinated debentures when
due whether at maturity, upon redemption, by declaration or otherwise,
provided however that a valid extension of any interest payment period by
Enterbank according to the terms of the indenture will not constitute a
debenture event of default;
- failure by Enterbank to observe or perform in any material respect any of
its other covenants or agreements contained in the indenture for 90 days
after written notice to Enterbank from the indenture trustee or to
Enterbank and the indenture trustee by the holders of at least 25% in
aggregate outstanding principal amount of the junior subordinated
debentures; or
- events in bankruptcy, insolvency or reorganization of Enterbank,
including the voluntary commencement of bankruptcy proceedings, entry of
an order for relief against Enterbank in a bankruptcy proceeding,
appointment of a custodian over substantially all of Enterbank's
property, a general assignment for the benefit of creditors, or a court
order for liquidation of Enterbank.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the indenture
trustee. The indenture trustee or the holders of not less than 25% in aggregate
outstanding principal amount of the junior subordinated debentures may declare
the principal due and payable immediately upon a debenture event of default. The
holders of a majority in aggregate outstanding principal amount of the junior
subordinated debentures may rescind and annul the declaration and waive the
default if the default, other than the non-payment of the principal of the
junior subordinated debentures which has become due solely by the acceleration,
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
indenture trustee. Should the holders of the junior subordinated debentures fail
to annul the declaration and waive the default, the holders of a majority in
aggregate liquidation amount of the preferred securities will have the right to
do so. In case a debenture 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.
Enterbank is required to file annually with the indenture trustee a
certificate as to whether Enterbank is in compliance with all the conditions and
covenants applicable to it under the indenture.
ENFORCEMENT OF RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an event of default under the indenture has occurred and is continuing
and the default is attributable to Enterbank's failure to pay interest or
principal on the junior
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subordinated debentures on the due date, a holder of preferred securities may
institute a legal proceeding directly against Enterbank for payment of principal
and interest on the junior subordinated debentures having a principal amount
equal to the aggregate liquidation amount of the preferred securities of the
holder. This action is referred to in this discussion as a direct action. If the
right to bring a direct action is removed, EBH Trust may become subject to the
reporting obligations under the Securities Exchange Act of 1934. Enterbank will
have the right under the indenture to set-off any payment made to the holder of
preferred securities by Enterbank in connection with a direct action.
The holders of the preferred securities would not be able to exercise
directly any remedies other than those set forth in the preceding paragraph
available to the holders of the junior subordinated debentures unless there has
been an event of default under the trust agreement. See "Description of the
Preferred Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The indenture provides that Enterbank will 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 will consolidate with
or merge into Enterbank or convey, transfer or lease its properties and assets
substantially as an entirety to Enterbank, unless:
- in case Enterbank consolidates with or merges into another person or
conveys or transfers its properties and assets substantially as an
entirety to any person, the successor person is organized under the laws
of the United States or any state or the District of Columbia, and the
successor person expressly assumes Enterbank's obligations on the junior
subordinated debentures issued under the indenture;
- immediately after giving effect to this type of transaction, no debenture
event of default, and no event which, after notice or lapse of time or
both, would become a debenture event of default, has occurred and is
continuing; and
- other conditions as prescribed in the indenture are met.
The provisions of the indenture do not afford holders of the junior
subordinated debentures protection in the event of a highly leveraged or other
transaction involving Enterbank that may adversely affect holders of the junior
subordinated debentures.
SATISFACTION AND DISCHARGE
Under the indenture, Enterbank will have satisfied and discharged the
indenture when all junior subordinated debentures not previously delivered to
the indenture trustee for cancellation (1) have become due and payable or (2)
will become due and payable at their stated maturity within one year, and
Enterbank deposits in trust with the indenture trustee sufficient funds to pay
and discharge the entire indebtedness on the junior subordinated debentures to
the deposit date or to the stated maturity, as the case may be. This
satisfaction and discharge will not apply to Enterbank's obligations to pay all
other sums due under the indenture and to provide the officers' certificates and
opinions of counsel described in the indenture.
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GOVERNING LAW
The indenture and the junior subordinated debentures will be governed by
and construed in accordance with the laws of the State of Missouri.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The indenture trustee will have and be subject to all the duties and
responsibilities specified for an indenture trustee under the Trust Indenture
Act. Subject to these provisions, the indenture trustee 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 the holder against the costs, expenses and liabilities which might
be incurred. The indenture 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 indenture trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it.
COVENANTS OF ENTERBANK
Enterbank will covenant in the indenture, as to the junior subordinated
debentures, that during the time that (1) EBH Trust is the holder of all junior
subordinated debentures, (2) a tax event in respect of EBH Trust has occurred
and is continuing and (3) Enterbank has elected, and has not revoked the
election, to pay additional sums, as defined under "Description of the Preferred
Securities -- Redemption -- Mandatory and Optional Rights of Enterbank," in
respect of the preferred securities, Enterbank will pay to EBH Trust these
additional sums. Enterbank will also covenant, as to the junior subordinated
debentures:
- to maintain directly or indirectly 100% ownership of the common
securities of EBH Trust to which junior subordinated debentures have been
issued, provided that successors which are permitted under the indenture
may succeed to Enterbank's ownership of the common securities;
- to not voluntarily terminate, wind up or liquidate EBH Trust, except upon
approval of the Federal Reserve if then so required, and to use its
reasonable efforts to cause EBH Trust to remain a business trust, except
(a) in connection with a distribution of junior subordinated debentures
to the holders of the preferred securities in liquidation of EBH Trust,
(b) the redemption of all of the trust securities or (c) in connection
with mergers, consolidations, or amalgamations permitted by the trust
agreement; and
- to use its reasonable efforts to cause each holder of trust securities to
be treated as owning an individual beneficial interest in the junior
subordinated debentures.
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BOOK-ENTRY ISSUANCE
Depository Trust Company ("DTC") will act as securities depositary for all
of the preferred securities and, in the event of the distribution of the junior
subordinated debentures to holders of the preferred securities, may act as
securities depositary for all of the junior subordinated debentures. The
preferred securities and the junior subordinated debentures will be issued only
as fully-registered securities registered in the name of Cede & Co., DTC's
nominee. One or more fully-registered global certificates will be issued for the
preferred securities and deposited with DTC. In the event of the distribution of
the junior subordinated debentures to holders of the preferred securities, one
or more fully-registered global certificates may be issued for the junior
subordinated debentures and may be deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the provisions of Section 17A of the Securities Exchange Act of
1934. DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the depositary system is also available to others such as securities brokers
and dealers, banks and trust companies that clear through or maintain custodial
relationships with direct participants, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the Securities and
Exchange Commission.
Purchases of preferred securities or junior subordinated debentures within
the depositary system must be made by or through direct participants, which will
receive a credit for the preferred securities or junior subordinated debentures
on DTC's records. The ownership interest of each actual purchaser of each
preferred security or junior subordinated debenture is in turn to be recorded on
the direct and indirect participants' records. Beneficial owners will not
receive written confirmation from the DTC of their purchases, but beneficial
owners are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the direct
or indirect participants through which the beneficial owners purchased preferred
securities or junior subordinated debentures. Transfers of ownership interests
in the preferred securities or junior subordinated debentures are to be
accomplished by entries made on the books of participants acting on behalf of
beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in preferred securities or junior subordinated
debentures, except in the event that use of the book-entry system for the
preferred securities or junior subordinated debentures is discontinued.
DTC has no knowledge of the actual beneficial owners of the preferred
securities or the junior subordinated debentures. DTC's records reflect only the
identity of the direct participants to whose accounts the preferred securities
or junior subordinated debentures are credited, which may or may not be the
beneficial owners. The participants will remain responsible for keeping account
of their holdings on behalf of their customers.
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Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners and the voting
rights of direct participants, indirect participants and beneficial owners will
be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the preferred securities or junior subordinated debentures. If less than all of
the preferred securities or the junior subordinated debentures are being
redeemed, DTC will determine the amount to be redeemed, in accordance with the
terms of the trust agreement.
Although voting regarding the preferred securities or the junior
subordinated debentures is limited to the holders of record of the preferred
securities or the junior subordinated debentures, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote
regarding preferred securities or the junior subordinated debentures. Under its
usual procedures, DTC would mail an omnibus proxy to the property trustee as
soon as possible after the record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to those direct participants to whose accounts the
preferred securities or junior subordinated debentures are credited on the
record date and which are used and identified in a listing attached to the
omnibus proxy.
Distribution payments on the preferred securities or the junior
subordinated debentures will be made by the property trustee to DTC. DTC's
practice is to credit direct participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on the payment date.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices. Payments will be the responsibility of the
participant and not of DTC, the relevant trustee, EBH Trust or Enterbank,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of distributions to DTC is the responsibility of the
property trustee, disbursement of the payments to direct participants is the
responsibility of DTC, and disbursements of the payments to the beneficial
owners is the responsibility of direct and indirect participants.
DTC may discontinue providing its services as securities depositary
regarding any of the preferred securities or the junior subordinated debentures
at any time by giving reasonable notice to the property trustee and Enterbank.
In the event that a successor securities depositary is not obtained, definitive
preferred securities or subordinated debenture certificates representing the
preferred securities or junior subordinated debentures are required to be
printed and delivered. Enterbank, at its option, may, at any time, decide to
discontinue use of the system of book-entry transfers through DTC, or any
successor depositary. After a debenture event of default, the holders of a
majority in liquidation preference of preferred securities or aggregate
principal amount of junior subordinated debentures may determine to discontinue
the system of book-entry transfers through DTC. In this event, definitive
certificates for the preferred securities or junior subordinated debentures will
be printed and delivered.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that EBH Trust and Enterbank believe to be
accurate, but EBH Trust and Enterbank assume no responsibility for the accuracy
thereof. Neither EBH Trust nor Enterbank has any responsibility for the
performance by DTC or its participants of their respective obligations as
described in this prospectus or under the rules and procedures governing their
respective operations.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
The preferred securities guarantee agreement will be executed and delivered
by Enterbank and Wilmington Trust Company concurrently with the issuance of the
preferred securities. The preferred securities guarantee will be for the benefit
of the holders of the preferred securities. Wilmington Trust Company will act as
trustee under the preferred securities guarantee for the purposes of compliance
with the Trust Indenture Act, and the preferred securities guarantee will be
qualified under the Trust Indenture Act. The following is a summary of the
material provisions of the preferred securities guarantee. Prospective investors
are urged to read the form of the preferred securities guarantee which has been
filed as an exhibit to the registration statement of which this prospectus forms
a part. The guarantee trustee will hold the preferred securities guarantee for
the benefit of the holders of the preferred securities.
GENERAL OVERVIEW
The preferred securities guarantee is an irrevocable guarantee on a
subordinated basis of all of EBH Trust's obligations to make payments under the
preferred securities, but will apply only to the extent that EBH Trust has funds
sufficient to make the payments, and is not a guarantee of collection.
Enterbank will irrevocably and unconditionally agree to pay in full on a
subordinated basis, to the extent set forth in this prospectus, the preferred
securities guarantee payments, as defined below, to the holders of the preferred
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that EBH Trust may have or assert other than the defense of
payment. The following payments regarding the preferred securities, to the
extent not paid by or on behalf of EBH Trust, will be subject to the preferred
securities guarantee of Enterbank:
- any accrued and unpaid distributions required to be paid on the preferred
securities, to the extent that EBH Trust has available funds on hand at
the time;
- the redemption price regarding any preferred securities called for
redemption to the extent that EBH Trust has available funds on hand at
the time; and
- upon a voluntary or involuntary dissolution, winding up or liquidation of
EBH Trust, unless the junior subordinated debentures are distributed to
holders of the preferred securities.
The amount of the preferred securities guarantee will be the lesser of (a)
the liquidation distribution and (b) the amount of assets of EBH Trust remaining
available for distribution to holders of preferred securities. Enterbank's
obligation to make a preferred securities guarantee payment may be satisfied by
direct payment of the required amounts by Enterbank to the holders of the
preferred securities or by causing EBH Trust to pay these amounts to the
holders.
If Enterbank does not make interest payments on the junior subordinated
debentures held by EBH Trust, EBH Trust will not be able to pay distributions on
the preferred securities and will not have funds legally available to pay
distributions. The preferred securities guarantee will rank subordinate and
junior in right of payment to all senior and subordinated debt of Enterbank. See
"Status of the Preferred Securities Guarantee" below. Because Enterbank is a
holding company, the right of Enterbank to participate in any distribution of
assets of any subsidiary upon the subsidiary's liquidation or reorganization or
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otherwise, is subject to the prior claims of creditors of that subsidiary,
except to the extent Enterbank may itself be recognized as a creditor of that
subsidiary. Accordingly, Enterbank's obligations under the preferred securities
guarantee will be effectively subordinated to all existing and future
liabilities of Enterbank's subsidiaries, and claimants should look only to the
assets of Enterbank for payments under the preferred securities guarantee.
Except as otherwise described in this prospectus, the preferred securities
guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of Enterbank, including senior and subordinated debt whether
under the indenture, any other indenture that Enterbank may enter into in the
future, or otherwise.
Enterbank has, through the preferred securities guarantee, the trust
agreement, the junior subordinated debentures, the indenture and the expense
agreement relating to EBH Trust, taken together, fully, irrevocably and
unconditionally guaranteed on a subordinated basis all of EBH Trust's
obligations under the preferred securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
this preferred securities guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee on a subordinated basis of all of EBH Trust's obligations under the
preferred securities. See "Relationship Among the Preferred Securities, the
Junior Subordinated Debentures and the Preferred Securities Guarantee."
STATUS OF THE PREFERRED SECURITIES GUARANTEE
The preferred securities guarantee will constitute an unsecured obligation
of Enterbank and will rank subordinate and junior in right of payment to all
senior and subordinated debt in the same manner as the junior subordinated
debentures.
The preferred securities guarantee will constitute a guarantee of payment
and not of collection. The guaranteed party may institute a legal proceeding
directly against Enterbank to enforce its rights under the preferred securities
guarantee without first instituting a legal proceeding against any other person
or entity. The preferred securities guarantee will be held for the benefit of
the holders of the preferred securities. The preferred securities guarantee does
not place a limitation on the amount of additional senior and subordinated debt
that may be incurred by Enterbank. Enterbank expects from time to time to incur
additional indebtedness constituting senior and subordinated debt.
AMENDMENTS AND ASSIGNMENT
Except regarding any changes which do not adversely affect the rights of
holders of the preferred securities in a material manner, in which case no
consent will be required, the preferred securities 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. See
"Description of the Preferred Securities -- Voting Rights; Amendment of the
Trust Agreement." All guarantees and agreements contained in the preferred
securities guarantee will bind the successors, assigns, receivers, trustees and
representatives of Enterbank and will inure to the benefit of the holders of the
preferred securities then outstanding.
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EVENTS OF DEFAULT
An event of default under the preferred securities guarantee will occur
upon the failure of Enterbank to perform any of its payment or other obligations
under the preferred securities guarantee. The holders of not less than a
majority in aggregate 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 regarding the preferred securities
guarantee or to direct the exercise of any trust or power conferred upon the
guarantee trustee under the preferred securities guarantee.
Any holder of preferred securities may institute a legal proceeding
directly against Enterbank to enforce the holder's rights under the preferred
securities guarantee without first instituting a legal proceeding against EBH
Trust, the guarantee trustee or any other person or entity.
Enterbank, as guarantor, is required to file annually with the guarantee
trustee a certificate as to whether Enterbank is in compliance with all the
conditions and covenants applicable to it under the preferred securities
guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of
a default by Enterbank in performance of the preferred securities guarantee,
undertakes to perform only the duties which are specifically set forth in the
preferred securities guarantee. After default regarding the preferred securities
guarantee, the guarantee trustee 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 rights or powers vested in it by the preferred securities
guarantee at the request or direction of any holder of the preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE
The preferred securities 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 upon liquidation of EBH
Trust or upon distribution of junior subordinated debentures to the holders of
the preferred securities. The preferred securities guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of the preferred securities must restore payment of any sums paid under the
preferred securities or the preferred securities guarantee.
GOVERNING LAW
The preferred securities guarantee will be governed by and construed in
accordance with the laws of the State of Missouri.
THE EXPENSE AGREEMENT
Under the agreement as to expenses and liabilities entered into by
Enterbank under the trust agreement, Enterbank will irrevocably and
unconditionally guarantee to each person or entity to whom EBH Trust becomes
indebted or liable, the full payment of any
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costs, expenses or liabilities of EBH Trust, other than obligations of EBH Trust
to pay to the holders of the preferred securities or other similar interests in
EBH Trust of the amounts due the holders under the terms of the preferred
securities or the other similar interests, as the case may be.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED
DEBENTURES AND THE PREFERRED SECURITIES GUARANTEE
FULL AND UNCONDITIONAL PREFERRED SECURITIES GUARANTEE ON A SUBORDINATED BASIS
Payments of distributions and other amounts due on the preferred
securities, to the extent EBH Trust has funds available for the payment of the
distributions, are irrevocably guaranteed by Enterbank as and to the extent set
forth under "Description of the Preferred Securities Guarantee." Taken together,
Enterbank's obligations under the junior subordinated debentures, the indenture,
the trust agreement, the expense agreement and the preferred securities
guarantee provide, in the aggregate, a full, irrevocable and unconditional
guarantee on a subordinated basis 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 of the other documents constitutes the
preferred securities guarantee. It is only the combined operation of those
documents that has the effect of providing a full, irrevocable and unconditional
guarantee on a subordinated basis of EBH Trust's obligations under the preferred
securities. If and to the extent that Enterbank does not make payments on the
junior subordinated debentures, EBH Trust will not pay distributions or other
amounts due on the preferred securities. The preferred securities guarantee does
not cover payment of distributions when EBH Trust does not have sufficient funds
to pay the distributions. In this event, the remedy of a holder of the preferred
securities is to institute a legal proceeding directly against Enterbank for
enforcement of payment of the distributions to the holder. The obligations of
Enterbank under the preferred securities guarantee are subordinate and junior in
right of payment to all senior and subordinated debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
junior subordinated debentures, the payments will be sufficient to cover
distributions and other payments due on the preferred securities, primarily
because: (1) the aggregate principal amount of the junior subordinated
debentures will be equal to the sum of the aggregate liquidation amount of the
preferred securities and common securities; (2) the interest rate and interest
and other payment dates on the junior subordinated debentures will match the
distribution rate and distribution and other payment dates for the preferred
securities; (3) Enterbank will pay for any and all costs, expenses and
liabilities of EBH Trust except EBH Trust's obligations to holders of preferred
securities; and (4) the trust agreement further provides that EBH Trust will not
engage in any activity that is not consistent with the limited purposes of EBH
Trust.
Notwithstanding anything to the contrary in the indenture, Enterbank may
satisfy any payment it is otherwise required to make to the trust under the
indenture, by and to the extent that it has made, or is concurrently on the date
of the payment required by the indenture making, a payment under the preferred
securities guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF THE PREFERRED SECURITIES UNDER THE PREFERRED
SECURITIES GUARANTEE
A holder of any of the preferred securities may institute a legal
proceeding directly against Enterbank to enforce its rights under the preferred
securities guarantee without first
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instituting a legal proceeding against the guarantee trustee, EBH Trust or any
other person or entity.
A default or event of default under any senior and subordinated debt would
not constitute an event of default. However, in the event of payment defaults
under, or acceleration of, senior and subordinated debt, the subordination
provisions of the indenture provide that no payments may be made in respect of
the junior subordinated debentures until the senior and subordinated debt has
been paid in full or any payment default thereunder has been cured or waived.
Failure to make required payments on junior subordinated debentures would
constitute an event of default.
LIMITED PURPOSE OF EBH TRUST
The preferred securities evidence a beneficial interest in EBH Trust, and
EBH Trust exists for the sole purpose of issuing the trust securities and
investing the proceeds from the sale of the trust securities in the junior
subordinated debentures. A principal difference between the rights of a holder
of the preferred securities and a holder of a junior subordinated debenture is
that a holder of a junior subordinated debenture is entitled to receive from
Enterbank the principal amount of and interest accrued on junior subordinated
debentures held, while a holder of the preferred securities is entitled to
receive distributions from EBH Trust, or from Enterbank under the preferred
securities guarantee, if and to the extent EBH Trust has funds available for the
payment of the distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
EBH Trust involving the liquidation of the junior subordinated debentures, the
holders of preferred securities will be entitled to receive, out of assets held
by EBH Trust, the liquidation distribution in cash. See "Description of the
Preferred Securities -- Liquidation Distribution Upon Termination." Upon any
voluntary or involuntary liquidation or bankruptcy of Enterbank, the property
trustee, as holder of the junior subordinated debentures, would be a
subordinated creditor of Enterbank, subordinated in right of payment to all
senior and subordinated debt as set forth in the indenture, but entitled to
receive payment in full of principal and interest, before any shareholders of
Enterbank receive payments or distributions. Since Enterbank is the guarantor
under the preferred securities guarantee and has agreed to pay for all costs,
expenses and liabilities of EBH Trust, other than EBH Trust's obligations to the
holders of its preferred securities, the positions of a holder of the preferred
securities and a holder of junior subordinated debentures relative to other
creditors and to shareholders of Enterbank in the event of liquidation or
bankruptcy of Enterbank are expected to be substantially the same.
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MATERIAL FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Armstrong Teasdale LLP, special counsel to Enterbank and
EBH Trust, the following are the material United States federal income tax
consequences of the purchase, ownership and disposition of the preferred
securities. Unless otherwise stated, this discussion deals only with preferred
securities held as capital assets by United States persons, defined below, who
are the beneficial holders (each a "holder") of the preferred securities
acquired upon their original issuance at their original offering price. As used
in this discussion, a United States person means a person that is (1) a citizen
or individual resident (or is treated as a citizen or individual resident) of
the United States for United States federal income tax purposes, (2) a
corporation, partnership or other entity created or organized (or is treated as
created or organized for United States federal income tax purposes) in or under
the laws of the United States or any political subdivision thereof, (3) an
estate the income of which is subject to United States federal income taxation
regardless of its source, or (4) any trust if a (i) court within the United
States is able to exercise primary supervision over the administration of the
trust and (ii) one or more United States persons have the authority to control
all substantial decisions of the trust.
The tax treatment of holders may vary depending on their particular
situation. This discussion does not address all the tax consequences that may be
relevant to a particular holder or to holders who may be subject to special tax
treatment, such as financial institutions, banks, real estate investment trusts,
regulated investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, individual retirement and certain tax deferred
accounts, foreign investors, or persons that will hold the preferred securities
as part of a position in a "straddle" or as part of a "hedging" or other
integrated transaction. The following summary does not address the tax
consequences to persons whose functional currency is not the United States
dollar or the tax consequences to shareholders, partners or beneficiaries of a
holder of the preferred securities. In addition, this discussion does not
include any description of any alternative minimum tax consequences or other
collateral tax consequences under United States federal income tax laws, or the
tax laws of any state, local or foreign government that may be applicable to a
holder of the preferred securities. This discussion is based on the Internal
Revenue Code of 1986, as amended, the Treasury regulations promulgated
thereunder and administrative and judicial interpretations of those authorities,
as of the date hereof, all of which are subject to change, possibly on a
retroactive basis. Any change of this nature could cause the tax consequences to
vary substantially from the consequences described below, possibly adversely
affecting a holder of the preferred securities.
Each prospective investor should consult their own tax advisors as to the
specific United States federal income tax consequences of the purchase,
ownership and disposition of the preferred securities.
The authorities on which this discussion is based are subject to various
interpretations and the opinions of counsel are not binding on 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 regarding the transactions described in
this prospectus. Accordingly, there can be no assurance that the IRS will not
challenge the opinions expressed in this discussion or that a court would not
sustain this type of challenge. It is therefore possible that the United States
federal income tax treatment of the purchase, ownership and disposition of
preferred securities may differ from the treatment described below.
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CLASSIFICATION OF EBH TRUST
Counsel will deliver its opinion in connection with the issuance of the
preferred securities that, under current law and assuming full compliance with
the terms of the trust agreement, and based on the facts and assumptions
contained in the opinion, EBH Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation. Accordingly, for United States federal income tax purposes each
holder of the preferred securities will be treated as owning an undivided
beneficial interest in the junior subordinated debentures, and each holder will
be required to include in its gross income its pro rata share of the interest
income or original issue discount, if any, that is paid or accrued on the junior
subordinated debentures. See "--Interest Income and Original Issue Discount."
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
Council will deliver its opinion that under current law, the junior
subordinated debentures will be classified for United States federal income tax
purposes as indebtedness of Enterbank. By acceptance of a preferred security,
each holder covenants to treat the junior subordinated debentures as
indebtedness and the preferred securities as evidence of an indirect beneficial
ownership interest in the junior subordinated debentures. No assurance can be
given, however, that this classification will not be challenged by the IRS or,
if challenged, that such a challenge will not be successful. The remainder of
this discussion assumes that the junior subordinated debentures will be
classified for United States federal income tax purposes as indebtedness of
Enterbank. See "Risk Factors -- You are subject to prepayment risk because
possible tax law changes could result in a redemption of the Preferred
Securities."
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Except as set forth below, stated interest on the junior subordinated
debentures generally will be included in income by a holder as ordinary income
at the time the interest income is paid or accrued in accordance with the
holder's regular method of tax accounting.
Enterbank's option to defer the payment of interest on the junior
subordinated debentures during an extension period might cause the junior
subordinated debentures to be considered initially issued with original issue
discount or treated as contingent payment debt instruments. Enterbank believes,
and will take the position, that this result will not arise because of a
provision in the Treasury regulations that applies when there is a remote
likelihood that a contingency, such as election to defer the payment of
interest, will occur. However, the Treasury regulations described above have not
yet been addressed in any rulings or other definitive interpretations by the
IRS. It is possible that the IRS could take a contrary position. If the IRS were
to assert successfully that the junior subordinated debentures were issued with
original issue discount regardless of whether Enterbank exercises its right to
defer payments of interest on the debentures, all holders, including those
utilizing the cash method of accounting, would be required to include the
original issue discount in income on a daily economic accrual basis as described
below.
If Enterbank exercises its right to defer payments of interest on the
junior subordinated debentures, the junior subordinated debentures will become
original issue discount instruments. In this event, all holders would be
required to include those amounts treated as original issue discount on the
junior subordinated debentures as a consequence
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of such reclassification in income on a daily economic accrual basis during the
extension period, even though Enterbank would not be expected to pay the
interest until the end of the extension period, and even though some holders may
use the cash method of tax accounting. Thereafter the junior subordinated
debentures would continue to be taxed as original issue discount instruments for
as long as they remained outstanding. Thus, even after the end of the extension
period, all holders would be required to continue to include those amounts
treated as original issue discount on the junior subordinated debentures in
income on a daily economic accrual basis, regardless of their method of tax
accounting and in advance of receipt of the cash attributable to this interest
income. In this event, actual cash payments of interest on the junior
subordinated debentures would not be reported separately as taxable income, but
the amount of original issue discount should be approximately equal to the
aggregate of all future payments of interest on the junior subordinated
debentures. Any amount of original issue discount included in a holder's gross
income (whether or not during a period during which payment is deferred) with
respect to a preferred security will increase such holder's tax basis in the
preferred security, and the amount of distribution received by a holder in
respect of such accrued original issue discount will reduce the tax basis of
such preferred security.
Because income on the preferred securities will constitute interest income
for United States federal income tax purposes, corporate holders of the
preferred securities will not be able to claim a dividends received deduction in
respect of such income.
Enterbank does not anticipate that additional sums, as defined in the
indenture, will be paid. However, if additional sums are paid, they will be
taxable to the security holder as ordinary income, generally as interest income.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF PREFERRED
SECURITIES
Under current United States federal income tax law, a distribution by EBH
Trust of the junior subordinated debentures as described under the caption
"Description of the Preferred Securities -- Liquidation and Distribution Upon
Termination" will be a non-taxable event and will result in the holder receiving
directly its pro rata share of the junior subordinated debentures previously
held indirectly through EBH Trust. The junior subordinated debentures received
by the holder will have a holding period and aggregate tax basis equal to the
holding period and aggregate tax basis the holder had in its preferred
securities immediately before the distribution. If, however, the liquidation of
EBH Trust were to occur because EBH Trust is subject to United States federal
income tax on income accrued or received on the junior subordinated debentures
as a result of a tax event or otherwise, the distribution by EBH Trust of junior
subordinated debentures to holders would be a taxable event to EBH Trust and
each holder. A holder would recognize gain or loss as if the holder had sold or
exchanged its preferred securities for the junior subordinated debentures it
received upon the liquidation of EBH Trust. See "-- Sales or Redemption of
Preferred Securities." A security holder would recognize interest income in
respect of junior subordinated debentures received from EBH Trust in the manner
described above under "-- Interest Income and Original Issue Discount."
SALES OR REDEMPTION OF PREFERRED SECURITIES
Gain or loss will be recognized by a holder on a sale or other taxable
disposition of preferred securities, including a redemption for cash, in an
amount equal to the difference between the amount realized (which for this
purpose will exclude amounts attributable to
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accrued interest or original issue discount not previously included in income,)
and the holder's adjusted tax basis in the preferred securities sold or
redeemed. A holder's adjusted tax basis generally will be its initial purchase
price, increased by any original issue discount previously included in the
holder's gross income to the date of disposition, and decreased by payments, if
any, received on the preferred securities in respect of original issue discount.
Any gain or loss on the taxable disposition of the preferred securities
generally will be treated as capital gain or loss. In general, amounts
attributable to accrued interest on a holder's pro rata share of the junior
subordinated debentures not previously included in income will be taxable as
ordinary income. However, because there is no clear authority regarding whether
a cash basis taxpayer is required to include in income accrued interest in the
event the preferred securities are sold for less than their principal amount,
investors are advised to consult their own tax advisors in such circumstances.
For taxpayers other than corporations, net capital gain, which is defined as net
long-term capital gain over net short-term capital loss for the taxable year,
realized from property, with limited exceptions, is subject to a maximum
marginal stated tax rate of 20%, or 10% in the case of taxpayers in the lowest
tax bracket. Capital gain or loss is long-term if the holding period for the
asset is more than one year, and is short-term if the holding period for the
asset is one year or less. Capital gains realized from assets held for one year
or less are taxed at the same rates as ordinary income. Subject to limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes.
The preferred securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest on the underlying junior subordinated
debentures. A holder that disposes of its preferred securities between record
dates for payments of distributions, and consequently does not receive a
distribution from EBH Trust for the period prior to the disposition, will
nevertheless be required to include in income accrued but unpaid interest or
accrued original issue discount on the junior subordinated debentures through
the date of disposition and will add this amount to its adjusted tax basis in
its preferred securities. The holder will recognize a capital loss on the
disposition of its preferred securities to the extent the selling price, (which
may not fully reflect the value of accrued but unpaid original issue discount)
is less than the holder's adjusted tax basis in the preferred securities, which
will include accrued but unpaid original issue discount that has been included
in income. As stated previously, subject to limited exceptions, capital losses
cannot be applied to offset ordinary income for United States federal income tax
purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid or original issue discount accrued, if any, on
the junior subordinated debentures, beneficial ownership of which is reflected
in the preferred securities held of record by United States persons, other than
corporations and other tax-exempt holders, will be reported to the IRS.
Generally, income on the preferred securities will be reported on Form 1099,
which form should be mailed to holders by January 31 following each calendar
year. Backup withholding at a rate of 31% will apply to payments of interest to
non-exempt United States persons unless the holder complies with certain
identification and other requirements in applicable Treasury regulations. Any
amounts withheld from a holder under the backup withholding rules will be
allowed as a credit against the holder's United States federal income tax
liability, provided the required information is furnished to the IRS. Payment of
the proceeds from the disposition of the preferred securities to or through the
United States office of a broker is subject to
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information reporting and backup withholding unless the holder or beneficial
owner establishes an exemption from information reporting and backup
withholding.
TAX LAW UNCERTAINTIES AND POSSIBLE TAX LAW CHANGES AFFECTING PREFERRED
SECURITIES
The combined tax effects of the trust's purchase of debt instruments such
as the junior subordinated debentures and simultaneous issuance of equity
interests such as the preferred securities has not been addressed in any
Treasury regulations or court decision and has not been approved or disapproved
by the IRS in any published ruling or notice. In a case filed in the United
States Tax Court, the IRS proposed disallowance of the deduction of the interest
expense claimed by a corporation on subordinated debt instruments issued by such
corporation and sold to a related trust. Although the IRS agreed to dismissal of
the relevant adjustments in that case prior to trial, it is not precluded from
asserting similar adjustments against other taxpayers. A variation of the
structure described in this prospectus involving a limited life company rather
than a trust was accepted by the IRS as creating debt giving rise to deductible
interest in Technical Advice Memorandum issued as LR 1999-10046. However,
taxpayers other than the taxpayer to whom a Private Letter Ruling or Technical
Advice Memorandum is addressed are not entitled to rely on them. In addition,
there can be no assurance that the facts underlying the Technical Advice
Memorandum are analogous to the facts underlying the preferred securities
described herein.
Legislative proposals have previously been made by the current
administration, which if enacted, could have adversely affected the ability of
Enterbank to deduct interest paid on the junior subordinated debentures.
Although these proposals were not enacted, there can be no assurance that future
legislation will not affect the ability of Enterbank to deduct interest on the
junior subordinated debentures or otherwise adversely affect the tax treatment
of the transactions described in this prospectus.
Although the IRS agreed to dismissal of the adjustments in the litigation
described above, it could assert similar adjustments against other taxpayers. It
if were to do so and the issue was litigated to a conclusion in which the IRS's
position on this matter was sustained, such a judicial determination could
constitute a tax event which could result in an early redemption of the
preferred securities. Similarly, if legislative proposals of the type described
above were to be enacted, a change of this nature could give rise to a tax
event, which may permit Enterbank to cause a redemption of the preferred
securities. See "Risk Factors -- You are subject to prepayment risk because
possible tax law changes could result in a redemption of the preferred
securities," "Description of the Preferred Securities -- Redemption -- Mandatory
and Optional Rights of Enterbank" and "Description of the Junior Subordinated
Debentures -- Redemption."
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF THE PREFERRED SECURITIES. HOLDERS OF THE
PREFERRED SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND
OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR
OTHER TAX LAWS.
62
<PAGE> 66
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code,
generally may purchase preferred securities subject to the investing fiduciary's
determination that the investment in preferred securities satisfies ERISA's
fiduciary standards and other requirements applicable to investments by the
plan.
However, Enterbank and any of its affiliates may be considered a party in
interest, within the meaning of Section 3(14) of ERISA, or a disqualified
person, within the meaning of Section 4975 of the Code, regarding plans
maintained or sponsored by, or contributed to by, Enterbank or an affiliate, or
regarding which Enterbank or an affiliate is a fiduciary, or plans for which
Enterbank or an affiliate provide services. The acquisition and ownership of
preferred securities by an individual retirement arrangement or other plan
described in Section 4975(e)(1) of the Code, regarding which Enterbank or any of
its affiliates is considered a party in interest or a disqualified person, may
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, which could give rise to the imposition of substantial taxes unless
the preferred securities are acquired under and in accordance with an applicable
exemption.
As a result, plans regarding which Enterbank and/or any of its affiliates
is a party in interest or a disqualified person should not acquire preferred
securities unless the preferred securities are acquired under and in accordance
with an applicable exemption. Any plans or entities whose assets include plan
assets subject to ERISA or Section 4975 of the Code proposing to acquire
preferred securities should consult with their own counsel.
63
<PAGE> 67
UNDERWRITING
Subject to the terms and conditions of the underwriting agreement among us,
EBH Trust and the underwriter, Stifel, Nicolaus & Company, Incorporated, the
underwriter has agreed to purchase from EBH Trust, and EBH Trust has agreed to
sell to the underwriter, 1,250,000 preferred securities.
In the underwriting agreement, the obligations of the underwriter are
subject to approval of certain legal matters by its counsel and to various other
conditions. Under the terms and conditions of the underwriting agreement, the
underwriter is committed to accept and pay for all of the preferred securities,
if any are taken.
The underwriter proposes to offer the preferred securities directly to the
public at the public offering price set forth on the cover page of this
prospectus, and to certain securities dealer at this price, less a concession
not in excess of $ per preferred security. The underwriter may allow,
and the selected dealers may reallow, a discount not in excess of $ per
preferred security to certain brokers and dealers. After the preferred
securities are released for sale to the public, the offering price and other
selling terms may from time to time be changed by the underwriter.
EBH Trust has granted to the underwriter an option, exercisable within 30
days after the date of this prospectus, to purchase up to 125,000 additional
preferred securities at the same price per preferred security to be paid by the
Underwriter for the other preferred securities being offered. The underwriter
may exercise the option only for the purpose of covering over-allotments, if
any, made in connection with the distribution of the Preferred securities being
offered.
If the underwriter exercises its option to purchase additional preferred
securities, EBH Trust will issue and sell to us additional common securities and
we will issue and sell to EBH Trust junior subordinated debentures in an
aggregate principal amount equal to the total aggregate liquidation amount of
the additional preferred securities being purchased under the option and the
additional common securities sold to us.
The table below shows the price and proceeds on a per security and
aggregate basis. The proceeds to be received by EBH Trust as shown in the below
do not reflect estimated expenses of $ payable by us as set forth in
the table below.
<TABLE>
<CAPTION>
PER PREFERRED
SECURITY TOTAL
------------- -----
<S> <C> <C>
Public Offering Price......................... $8.00 $10,000,000
Proceeds to EBH Trust......................... $8.00 $10,000,000
</TABLE>
In view of that fact that the proceeds of the sale of the preferred
securities will be used by EBH Trust to purchase the junior subordinated
debentures from us, we have agreed to pay the underwriter $ per
preferred security, or a total of $ , as compensation for arranging the
investment in the junior subordinated debentures. Should the underwriter
exercise the over-allotment option, an aggregate of $ will be paid to
the underwriter for arranging the investment in the junior subordinate
debentures.
During a period of 30 days from the date of this prospectus, neither EBH
Trust nor we will, subject to certain exceptions, without the prior written
consent of the underwriter, directly or indirectly, sell, offer to sell, grant
any option for sale of, or other dispose of, any preferred securities, any
security convertible into or exchangeable for preferred securities or junior
subordinated debentures or any debt securities substantially similar to the
junior
64
<PAGE> 68
subordinated debentures or equity securities substantially similar to the
preferred securities (except for junior subordinated debentures and the
preferred securities being offered).
The offering of the preferred securities is made for delivery when, as and
if accepted by the underwriter and subject to prior sale and to withdrawal,
cancellation or modification of the offering without notice. The underwriter
reserves the right to reject any order for the purchase of the preferred
securities.
Enterprise Holdings and EBH Trust have agreed to indemnify the underwriter
against several liabilities, including liabilities under the Securities Act of
1933.
Although application has been made to have the preferred securities
approved for listing on the American Stock Exchange, no assurances can be made
as to the liquidity of the preferred securities or that an active and liquid
market will develop or, if developed, that the market will continue. The
offering price and distribution rate have been determined by negotiations among
representatives of Enterprise Holdings and the underwriter, and the offering
price of the preferred securities may not be indicative of the market price
following the offering.
In connection with the offering, the underwriter may engage in transactions
that are intended to stabilize, maintain or otherwise affect the price of the
preferred securities during and after the offering, such as the following:
- the underwriter may over-allot or otherwise create a short position in
the preferred securities for their own account by selling more preferred
securities than have been sold to them;
- the underwriter may elect to cover any short position by purchasing
preferred securities in the open market or by exercising the
over-allotment option;
- the underwriter may stabilize or maintain the price of the preferred
securities by bidding; and
- the underwriter may impose penalty bids, under which selling concessions
allowed to syndicate members or broker-dealers participating in this
offering are reclaimed if preferred securities previously distributed in
the offering are repurchased in connection with stabilization
transactions or otherwise.
The effect of these transactions may be to stabilize or maintain the market
price at a level above that which might otherwise prevail in the open market.
The imposition of a penalty bid may also affect the price of the preferred
securities to the extent that it discourages resales. No representation is made
as to the magnitude or effect of any such stabilization or other transactions.
Such transactions may be effected on the American Stock Exchange or otherwise
and, if commenced, may be discontinued at any time.
65
<PAGE> 69
The following table sets forth the estimated expenses in connection with
the sale and distribution of the preferred securities, other than underwriting
discounts and commissions. All such expenses will be paid by Enterbank.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 3,058
NASD filing fee............................................. 1,600
Blue Sky filing fees and expenses........................... 2,000
American Stock Exchange listing fees........................ 15,000
Accounting fees and expenses................................ 50,000
Legal fees and expenses..................................... 80,000
Printing, postage and mailing............................... 25,000
Other....................................................... 3,342
--------
Total............................................. $180,000
========
</TABLE>
Because the National Association of Securities Dealers may view the
preferred securities as interests in a direct participation program, the offer
and sale of the preferred securities is being made in compliance with the
provisions of Rule 2810 under the NASD Conduct Rules.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy, upon payment of a fee set by
the SEC, any document that we file with the SEC at its public reference rooms in
Washington, D.C. (450 Fifth Street, N.W., 20549), New York, New York (Seven
World Trade Center, 13th Floor, Suite 1300, 10048) and Chicago, Illinois
(Citicorp Center, 500 West Madison Street, 14th Floor, Suite 1400, 60661). You
may also call the SEC at 1-800-432-0330 for more information on the public
reference rooms. Our filings are also available to the public on the internet,
through the SEC's EDGAR database. You may access the EDGAR database at the SEC's
web site at http://www.sec.gov.
You may also obtain a copy of these filings from us at no cost upon your
written or oral request to us. Please direct your requests to Jennifer Smith at
Enterbank Holdings, Inc., 150 North Meramec, St. Louis, Missouri, 63105, or by
telephoning us at (314) 725-5500. To obtain timely delivery, you must request
the information no later than five business days prior to the date you decide to
invest in EBH Capital Trust's preferred securities.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with them. This means that we can disclose important
business, financial and other information in our SEC filings by referring you to
the documents containing this information. Any information referred to in this
way is considered part of this prospectus, and any information filed with the
SEC by us after the date of this prospectus will automatically be deemed to
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we file a
post-effective amendment to the Form S-3 indicating the termination of this
offering:
- Annual Report on Form 10-K for the year ended December 31, 1998.
- Quarterly Report on Form 10-Q for the three months ended March 31, 1999.
- Quarterly Report on Form 10-Q for the six months ended June 30, 1999.
66
<PAGE> 70
- Proxy Statement on Schedule 14A Filed September 13, 1999.
There are not separate financial statements of EBH Capital Trust in this
prospectus. We do not believe such financial statements would be helpful
because:
- EBH Capital Trust is a subsidiary of Enterbank Holdings, Inc., which
files consolidated financial information under the Exchange Act.
- EBH Capital Trust does not have any independent operations other than
issuing the preferred and common securities and purchasing the junior
subordinated debentures of Enterbank Holdings, Inc.
- EBH Capital Trust's only material assets will be the junior subordinated
debentures of Enterbank Holdings, Inc. when issued.
- The combined obligations of Enterbank Holdings, Inc. under the junior
subordinated debentures, the guarantee, the trust agreement and the
indenture have the effect of providing a full and unconditional guarantee
of EBH Capital Trust's obligations under its preferred securities. See
"Description of Junior Subordinated Securities," "Description of the
Preferred Securities," "Description of Preferred Securities Guarantee"
and "Relationship Among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee."
LEGAL MATTERS
The validity of the preferred securities we are offering, and certain
matters relating to United States federal income tax consequences of this
offering, will be passed upon for us and for EBH Trust by Armstrong Teasdale
LLP, St. Louis, Missouri. Richards, Layton & Finger, Wilmington, Delaware, will
pass upon certain matters relating to Delaware law for EBH Trust. Certain legal
matters will be passed upon for the underwriter by Lewis, Rice & Fingersh, L.C.,
St. Louis, Missouri.
EXPERTS
The consolidated financial statements of Enterbank Holdings, Inc. as of
December 31, 1998 and 1997 and for each of the years in the three-year period
ended December 31, 1998, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we and
EBH Capital Trust have filed with the Securities and Exchange Commission
relating to EBH Capital Trust's preferred securities being offered by this
prospectus. As permitted by SEC rules, this prospectus does not contain all of
the information contained in the registration statement and accompanying
exhibits and schedules we file with the SEC. You may refer to the registration
statement, the exhibits and schedules for more information about us and EBH
Capital Trust's preferred securities. The registration statement, exhibits and
schedules are also available at the SEC's public reference rooms or through its
EDGAR database on the internet.
67
<PAGE> 71
------------------------------------------------------
------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Special Note of Caution Regarding
Forward-Looking Statements.......... i
Prospectus Summary.................... 1
The Offering.......................... 4
Selected Consolidated Financial
Data................................ 8
Risk Factors.......................... 10
Use of Proceeds....................... 19
Accounting Treatment.................. 19
Capitalization........................ 20
Business.............................. 21
Description of the Preferred
Securities.......................... 24
Description of the Junior Subordinated
Debentures.......................... 39
Book-Entry Issuance................... 50
Description of the Preferred
Securities Guarantee................ 52
Relationship Among the Preferred
Securities, the Junior Subordinated
Debentures and the Preferred
Securities Guarantee................ 56
Material Federal Income Tax
Consequences........................ 58
ERISA Considerations.................. 63
Underwriting.......................... 64
Where You Can Find More Information... 66
Legal Matters......................... 67
Experts............................... 67
About this Prospectus................. 67
</TABLE>
- - WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION THAT DIFFERS FROM
THE INFORMATION IN THIS PROSPECTUS. IF YOU RECEIVE ANY DIFFERENT INFORMATION,
YOU SHOULD NOT RELY ON IT.
- - THE DELIVERY OF THIS PROSPECTUS SHALL NOT, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT ENTERBANK HOLDINGS, INC. IS OPERATING UNDER THE SAME
CONDITIONS THAT IT WAS OPERATING UNDER WHEN THIS PROSPECTUS WAS WRITTEN. DO
NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT AT ANY
TIME PAST THE DATE INDICATED.
- - THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR THE SOLICITATION OF
AN OFFER TO BUY, ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES.
- - THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR THE SOLICITATION OF
AN OFFER TO BUY, THE SECURITIES TO WHICH IT RELATES IN ANY CIRCUMSTANCES IN
WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
1,250,000 PREFERRED SECURITIES
EBH CAPITAL TRUST I
% CUMULATIVE
PREFERRED SECURITIES
(LIQUIDATION AMOUNT $8 PER
PREFERRED SECURITY)
FULLY, IRREVOCABLY AND
UNCONDITIONALLY GUARANTEED ON A
SUBORDINATED BASIS,
AS DESCRIBED IN THIS PROSPECTUS, BY
[ENTERBANK HOLDINGS, INC. LOGO]
ENTERBANK HOLDINGS,
INC.
------------------------
$10,000,000
% SUBORDINATED DEBENTURES
OF
ENTERBANK HOLDINGS, INC.
------------------------
PROSPECTUS
, 1999
------------------------
STIFEL, NICOLAUS & COMPANY
INCORPORATED
------------------------------------------------------
------------------------------------------------------
<PAGE> 72
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the sale and distribution of the securities being registered hereby, other than
underwriting discounts and commissions. All such expenses are to be paid by
Enterbank Holdings, Inc.:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 3,058
NASD filing fee............................................. 1,600
Blue Sky filing fees and expenses........................... 2,000
American Stock Exchange Listing Fees........................ 15,000
Accounting fees and expenses................................ 50,000
Legal fees and expenses..................................... 80,000
Printing, postage and mailing............................... 25,000
Other....................................................... 3,342
--------
Total............................................. $180,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 102(b)(7) and 145 of the Delaware General Corporate Law
("DGCL"), the Company has broad power to indemnify and insure its directors and
officers against liabilities they may incur in their capacities as such. Section
102(b)(7) of the DGCL permits a corporation to adopt a provision in its
Certificate of Incorporation eliminating or limiting the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director, except that such provision shall not limit the
liability of a director for: (i) any breach of the director's duty of loyalty to
the corporation or its shareholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
liability under Section 174 of the DGCL for unlawful payment of dividends or
stock purchases or redemptions; or (iv) any transaction from which the director
derived an improper personal benefit. The Company's Certificate of Incorporation
limits the personal liability of the Company's directors for monetary damages to
the fullest extent permissible under applicable law. Under Section 145 of the
DGCL, a corporation may indemnify any person made a party or threatened to be
made a party to any type of proceeding (other than an action by or in the right
of the corporation) because he is or was an officer, director, employee or agent
of the corporation, or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or entity, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such proceeding: (i) if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation; or (ii) in the case of a criminal proceeding, he
had no reasonable cause to believe that his conduct was unlawful. A corporation
may indemnify any person made a party or threatened to be made a party to any
threatened, pending or completed action or suit brought by or in the right of
the corporation because he was an officer, director, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other entity,
against expenses actually and reasonably incurred in connection with such action
or suit if he acted in good
II-1
<PAGE> 73
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that there may be no such indemnification
if the person is found liable to the corporation unless, in such a case, the
court determines the person is entitled thereto. A corporation must indemnify a
director, officer, employee or agent against expenses actually and reasonably
incurred by him who successfully defends himself in a proceeding to which he was
a party because he was a director, officer, employee or agent of the
corporation. Expenses incurred by an officer or director (or other employees or
agents as deemed appropriate by the Board of Directors) in defending a civil or
criminal proceeding may be paid by the Company in advance of the final
disposition of such proceeding upon delivery of a written affirmation by the
director of his good faith belief that the standard of conduct necessary for
indemnification has been met and upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation. The
Delaware law indemnification and expense advancement provisions are not
exclusive of any other rights which may be granted by the bylaws, a vote of
shareholders or disinterested directors, agreement or otherwise. The Company's
Bylaws provide for the indemnification of (but not advancement of defense costs
to the) directors and officers (but not employees and agents) of the Company to
the fullest extent not prohibited by Delaware law. The Company has also obtained
directors and officers liability insurance covering, subject to certain
exceptions, actions taken by the Company's directors and officers in their
capacities as such. The indemnification and insurance provisions discussed above
may be sufficiently broad to permit indemnification of the Company's officers
and directors for liabilities arising under the Securities Act. The Company has
been advised that the Securities and Exchange Commission is of the opinion that
indemnification for liabilities under the Securities Act is against public
policy.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following is a list of exhibits filed as part of this Registration
Statement and also serves as the Exhibit Schedules:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1* Form of Underwriting Agreement
4.1* Certificate of Trust of EBH Capital Trust
4.2* Restated Certificate of Trust of EBH Capital Trust
4.3* EBH Capital Trust I Trust Agreement
4.4* Form of EBH Capital Trust I Amended and Restated Trust
Agreement
4.5* Form of Preferred Securities Certificate (included as an
exhibit to Exhibit 4.4)
4.6* Form of Subordinated Indenture
4.7* Form of Junior Subordinated Debenture (included as an
exhibit to Exhibit 4.6)
4.8* Form of Preferred Securities Guarantee Agreement
5.1* Opinion of Armstrong Teasdale LLP regarding legality of
securities being registered
5.2* Opinion of Richards, Layton & Finger
8.1* Opinion of Armstrong Teasdale LLP regarding tax matters
12.1* Computation of ratio of earnings to fixed charges
</TABLE>
II-2
<PAGE> 74
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
23.1* Consent of KPMG LLP
23.2* Consent of Armstrong Teasdale LLP (contained in Exhibit 5.1
and Exhibit 8.1)
23.3* Consent of Richards, Layton & Finger (contained in Exhibit
5.2)
24.1* Powers of Attorney (see the signature page of this
Registration Statement)
25.1* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the Subordinated Indenture
25.2* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the EBH Trust Amended and Restated Trust Agreement
25.3* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee Agreement
</TABLE>
- -------------------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted form 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 pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
Prospectus shall be deemed to be a new Registration Statement related to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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, when 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
at that time shall be deemed to be the initial bona fide offering hereof.
Insofar as indemnification for liabilities arising under the Securities Act
for 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against policy as expressed in the 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
II-3
<PAGE> 75
the successful defense of any action, suit or proceeding) 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 Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 76
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 Clayton, State of Missouri, on the 23rd day of
September, 1999.
<TABLE>
<S> <C>
ENTERBANK HOLDINGS, INC
By: /s/ FRED H. ELLER By: /s/ JAMES C. WAGNER
---------------------------------- ----------------------------------
Fred H. Eller James C. Wagner
Chief Executive Officer Chief Financial Officer
</TABLE>
POWER OF ATTORNEY
We, the undersigned officers and directors of Enterbank Holdings, Inc.,
hereby severally constitute and appoint Fred H. Eller and James C. Wagner and
each of them, our true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for each of us in our name, place, and
stead, in any and all capacities, to sign Enterbank Holdings, Inc.'s
Registration Statement on Form S-3, and any other Registration Statement
relating to the same offering, and any and all amendments thereto (including
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grant to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as each
of us might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ FRED H. ELLER President, Chief Executive September 23, 1999
- ----------------------------- Officer and Director
Fred H. Eller
/s/ RONALD E. HENGES Chairman of the Board of September 23, 1999
- ----------------------------- Directors
Ronald E. Henges
Director
- -----------------------------
Kevin C. Eichner
/s/ RANDALL D. HUMPHREYS Director September 23, 1999
- -----------------------------
Randall D. Humphreys
Director
- -----------------------------
Paul R. Cahn
Director
- -----------------------------
William B. Moskoff
/s/ BIRCH M. MULLINS Director September 23, 1999
- -----------------------------
Birch M. Mullins
</TABLE>
II-5
<PAGE> 77
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
Director
- -----------------------------
Robert E. Saur
/s/ PAUL L. VOGEL Director September 23, 1999
- -----------------------------
Paul L. Vogel
/s/ JAMES A. WILLIAMS Director September 23, 1999
- -----------------------------
James A. Williams
/s/ HENRY D. WARSHAW Director September 23, 1999
- -----------------------------
Henry D. Warshaw
/s/ JAMES L. WILHITE Director September 23, 1999
- -----------------------------
James L. Wilhite
Director
- -----------------------------
Ted C. Wetterau
</TABLE>
II-6
<PAGE> 78
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Clayton, State of
Missouri, on the 23 day of September, 1999.
EBH Capital Trust I
By: Enterbank Holdings, Inc., as
Sponsor
By: /s/ FRED H. ELLER
-----------------------------------
Fred H. Eller
Chief Executive Officer
II-7
<PAGE> 79
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1* Form of Underwriting Agreement
4.1* Certificate of Trust of EBH Capital Trust
4.2* Restated Certificate of Trust of EBH Capital Trust
4.3* EBH Capital Trust I Trust Agreement
4.4* Form of EBH Capital Trust I Amended and Restated Trust
Agreement
4.5* Form of Preferred Securities Certificate (included as an
exhibit to Exhibit 4.4)
4.6* Form of Subordinated Indenture
4.7* Form of Junior Subordinated Debenture (included as an
exhibit to Exhibit 4.6)
4.8* Form of Preferred Securities Guarantee Agreement
5.1* Opinion of Armstrong Teasdale LLP regarding legality of
securities being registered
5.2* Opinion of Richards, Layton & Finger
8.1* Opinion of Armstrong Teasdale LLP regarding tax matters
12.1* Computation of ratio of earnings to fixed charges
23.1* Consent of KPMG LLP
23.2* Consent of Armstrong Teasdale LLP (contained in Exhibit 5.1
and Exhibit 8.1)
23.3* Consent of Richards, Layton & Finger (contained in Exhibit
5.2)
24.1* Powers of Attorney (see the signature page of this
Registration Statement)
25.1* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the Subordinated Indenture
25.2* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the EBH Trust Amended & Restated Trust Agreement
25.3* Form of Eligibility on Form T-1 under Trust Indenture Act of
1939, as amended, of Wilmington Trust Company, as Trustee
under the Preferred Securities Guarantee Agreement
</TABLE>
- -------------------------
* Filed herewith
<PAGE> 1
EXHIBIT 1.1
1,250,000 Preferred Securities
EBH CAPITAL TRUST I
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $8 per Preferred Security)
UNDERWRITING AGREEMENT
_____________, 1999
STIFEL, NICOLAUS & COMPANY, INCORPORATED
500 North Broadway
St. Louis, Missouri 63102
Dear Sirs:
Enterbank Holdings, Inc., a Delaware corporation (the "Company"), and
its financing subsidiary, EBH Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to Stifel, Nicolaus & Company, Incorporated (the
"Underwriter"), pursuant to the terms of this Agreement, 1,250,000 of the
Trust's _____% Cumulative Trust Preferred Securities, with a liquidation amount
of $8 per preferred security (the "Preferred Securities"), to be issued under
the Trust Agreement (as hereinafter defined), the terms of which are more fully
described in the Prospectus (as hereinafter defined). The aforementioned
1,250,000 Preferred Securities to be sold to the Underwriter are herein called
the "Firm Preferred Securities." Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriter, at its option,
up to an additional 125,000 Preferred Securities (the "Option Preferred
Securities") upon exercise of the over-allotment option granted in Section 1
hereof. The Firm Preferred Securities and any Option Preferred Securities are
herein collectively referred to as the "Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement with the
Underwriter in connection with the proposed purchase of the Designated Preferred
Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriter and the Underwriter agrees to purchase from the Trust, at a purchase
price of $8 per Firm Preferred Security (the "Purchase Price"), 1,250,000
Preferred Securities. Because the proceeds from the sale of the Firm Preferred
Securities will be used to purchase from the Company its Debentures (as
hereinafter defined and as described in the Prospectus), the Company shall pay
to the Underwriter a commission of $____________ per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriter an option (the "Option") to
purchase all or any portion of the 125,000 Option Preferred Securities, and upon
the
<PAGE> 2
exercise of such Option in accordance with this Section 1, the Offerors hereby
agree that the Trust shall issue and sell to the Underwriter all or any portion
of the Option Preferred Securities at the same Purchase Price per Option
Preferred Security paid for the Firm Preferred Securities. Because the proceeds
from the sale of the Option Preferred Securities will be used to purchase from
the Company its Debentures, the Company shall pay to the Underwriter a
commission of $____________ per Option Preferred Security for each Option
Preferred Security purchased (the "Option Preferred Securities Commission"). The
Option hereby granted shall expire 30 days after the date upon which the
Registration Statement (as hereinafter defined) becomes effective and may be
exercised only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm Preferred Securities.
The Option may be exercised in whole or in part at any time (but not more than
once) by the Underwriter giving notice (confirmed in writing) to the Trust
setting forth the number of Option Preferred Securities as to which the
Underwriter is exercising the Option and the time, date and place for payment
and delivery of certificates for such Option Preferred Securities. Such time and
date of payment and delivery for the Option Preferred Securities (the "Option
Closing Date") shall be determined by the Underwriter, but shall not be earlier
than two nor later than five full business days after the exercise of such
Option, nor in any event prior to the Closing Date (as hereinafter defined). The
Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities shall
be made at the offices of the Underwriter, 501 North Broadway, St. Louis,
Missouri 63102, or such other place as shall be agreed to by the Underwriter and
the Offerors, at 10:00 a.m., St. Louis time, on ________, 1999, or at such other
time not more than five full business days thereafter as the Offerors and the
Underwriter shall determine (the "Closing Date"). The Trust shall deliver or
cause to be delivered to you for the account of the Underwriter against payment
to or upon the order of the Trust of the purchase price in federal or other
immediately available funds, the Firm Preferred Securities in the form of one or
more permanent global securities in definitive form (the "Global Securities")
deposited with the Property Trustee as custodian for the Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent Global Securities will be held only in book-entry
form. If the Underwriter exercises the option to purchase any or all of the
Option Preferred Securities, payment of the Purchase Price and Option Preferred
Securities Commission and delivery of certificates for such Option Preferred
Securities shall be made on the Option Closing Date at the Underwriter's
offices, or at such other place as the Offerors and the Underwriter shall
determine. Upon delivery, the Option Preferred Securities shall be in the form
of one or more global Option Preferred Securities registered in the name of Cede
& Co., as nominee of DTC. Payments for the Designated Preferred Securities shall
be made to an account designated by the Trust by wire transfer or certified or
bank cashier's check, in same day funds, in the amount of the Purchase Price
therefor, against delivery by or on behalf of the Trust to the Underwriter for
the account of the Underwriter of certificates for the Designated Preferred
Securities to be purchased by the Underwriter.
The agreement contained herein with respect to the timing of the
Closing Date and Option Closing Date is intended to, and does, constitute an
express agreement, as described in Rule 15c6-1(c) and (d) promulgated under the
1934 Act (as defined herein), for a settlement date other than three business
days after the date of the contract.
Time shall be of the essence, and delivery of the certificates for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee and the
Administrative Trustees named therein (collectively, the
2
<PAGE> 3
"Trustees"), and the Company, in substantially the form heretofore delivered to
the Underwriter, said Agreement being hereinafter referred to as the "Trust
Agreement." In connection with the issuance of the Designated Preferred
Securities, the Company proposes (i) to issue its Junior Subordinated Debentures
(the "Debentures") pursuant to an Indenture between the Company and Wilmington
Trust Company, as Trustee (the "Indenture"), and (ii) to guarantee certain
payments on the Designated Preferred Securities pursuant to a Guarantee
Agreement between the Company and Wilmington Trust Company, as guarantee trustee
(the "Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to,
and agree with, the Underwriter that:
(i) The reports filed with the Securities and Exchange
Commission (the "Commission") by the Company under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") at the time they
were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a Registration Statement on Form S-3 (File Numbers ________
and ________) for registration of the issuance of the Designated
Preferred Securities, the Guarantee and up to $11,000,000 aggregate
principal amount of Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such Registration Statement
may have been so filed, in each case in conformity in all material
respects with the requirements of the 1933 Act, the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, any
Preliminary Prospectus (as defined herein) and the exhibits, financial
statements and schedules to such registration statement, as finally
amended and revised, have heretofore been delivered by the Offerors to
the Underwriter. After the execution of this Agreement, the Offerors
will file with the Commission (A) if such registration statement, as
it may have been amended, has been declared by the Commission to be
effective under the 1933 Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no
such amendment shall have been filed, in such registration statement),
with such changes or insertions as are required by Rule 430A of the
1933 Act Regulations ("Rule 430A") or permitted by Rule 424(b) of the
1933 Act Regulations ("Rule 424(b)") and as have been provided to and
not objected to by the Underwriter prior to (or as are agreed to by
the Underwriter subsequent to) the execution of this Agreement, or (B)
if such registration statement, as it may have been amended, has not
been declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not
objected to by the Underwriter prior to (or is agreed to by the
Underwriter subsequent to) the execution of this Agreement. As used in
this Agreement, the term "Registration Statement" means such
registration statement, as amended, if applicable, at the time when it
was or is declared effective under the 1933 Act, including (1) all
financial schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed under the
1934 Act, and (3) any information omitted therefrom pursuant to
3
<PAGE> 4
Rule 430A and included in the Prospectus; the term "Preliminary
Prospectus" means each prospectus subject to completion filed with
such registration statement or any amendment thereto, including all
documents (or portions thereof) incorporated by reference therein
under the 1934 Act (including the prospectus subject to completion, if
any, included in the Registration Statement and each prospectus filed
pursuant to Rule 424(a) under the 1933 Act); and the term "Prospectus"
means the prospectus first filed with the Commission pursuant to Rule
424(b)(1) or (4) or, if no prospectus is required to be filed pursuant
to Rule 424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules and all
documents (or portions thereof) incorporated by reference therein
under the 1934 Act. The date on which the Registration Statement
becomes effective is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in any
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in
any Preliminary Prospectus or Prospectus, as the case may be, at the
time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(iv) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) has been issued by the Commission, nor has the Commission,
to the knowledge of the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Any Preliminary Prospectus,
at the time of filing thereof, (A) complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations,
and (B) did not contain an 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, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Offerors by the Underwriter expressly for inclusion in
the Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriter's Information").
(v) At the Effective Date and at all times subsequent
thereto, up to and including the Closing Date and, if applicable, the
Option Closing Date, the Registration Statement and any post-effective
amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act (and the rules and regulations
thereunder), and (B) did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, not
misleading; provided, however, that this representation and warranty
does not apply to the Underwriter's Information. At the Effective Date
and at all times when the Prospectus is required to be delivered in
connection with offers and sales of Designated Preferred Securities,
including, without limitation, the Closing Date and, if applicable,
the Option Closing Date, the Prospectus, as amended or supplemented,
(A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder), and
(B) did not contain and will not contain an 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, in light of the
circumstances under
4
<PAGE> 5
which they were made, not misleading; provided, however, that this
representation and warranty does not apply to the Underwriter's
Information.
(A) The Company is duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in and contemplated
by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus) and as
currently being conducted and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the
"BHC Act").
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in
the Registration Statement and Prospectus, to issue and sell its
common securities (the "Common Securities") to the Company pursuant to
the Trust Agreement, to issue and sell the Designated Preferred
Securities, to enter into and perform its obligations under this
Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and described in the Prospectus; the Trust is not a party to or bound
by any agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by the Trust
Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Trust is
not, and at the Closing Date or any Option Closing Date will not be,
to the knowledge of the Offerors, classified as an association taxable
as a corporation for United States federal income tax purposes; and
the Trust is, and as of the Closing Date or any Option Closing Date
will be, treated as a consolidated subsidiary of the Company pursuant
to generally accepted accounting principles.
(vi) The Company has [six] subsidiaries, which are listed on
Exhibit A attached hereto and incorporated by reference herein (the
"Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries.
Each Subsidiary is a corporation, bank or trust duly organized,
incorporated or created, as the case may be, validly existing and in
good standing under the laws of its respective jurisdiction of
incorporation, organization or creation, as the case may be. Each such
Subsidiary has full corporate and other power and authority to own,
lease and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) and as currently being conducted. The deposit accounts of
Enterprise Bank (the "Bank") are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation (the "FDIC")
up to the maximum amount provided by law, and no proceedings for the
modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Offerors, threatened.
(vii) The Company and each of the Subsidiaries is duly
qualified to transact business as a foreign corporation, bank or
trust, as the case may be, and is in good standing in
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<PAGE> 6
each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which
the failure to so qualify would, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis. All of the issued and outstanding shares of capital stock of
the Subsidiaries (A) have been duly authorized and are validly issued,
(B) are fully paid and nonassessable except to the extent such shares
may be deemed assessable under 12 U.S.C. Section 55 or 12 U.S.C.
Section 1831o, and (C) except as disclosed in the Prospectus (or, if
the Prospectus is not in existence, any Preliminary Prospectus), are
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim or equity. Except as disclosed in
the Prospectus, there are no outstanding rights, warrants or options
to acquire or instruments convertible into or exchangeable for any
capital stock or equity securities of the Offerors or the
Subsidiaries.
(viii) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof contained
in the Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and
validly issued and are fully paid and nonassessable, and no such
shares were issued in violation of the preemptive or similar rights of
any security holder of an Offeror. No person has any preemptive or
similar right to purchase any shares of capital stock or equity
securities of the Offerors. Except as disclosed in the Prospectus (or,
if the Prospectus is not in existence, any Preliminary Prospectus),
there are no outstanding rights, options or warrants to acquire any
securities of the Offerors, and there are no outstanding securities
convertible into or exchangeable for any such securities and no
restrictions upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the Company's
corporate charter or bylaws, the Trust Agreement or any agreement or
other instrument to which an Offeror is a party or by which an Offeror
is bound.
(A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus). All corporate and trust action required to be taken by
the Offerors for the authorization, issuance, sale and delivery of the
Designated Preferred Securities in accordance with such terms and
conditions has been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, will
represent valid fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits
of the Trust Agreement, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform to the
description thereof in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, any Preliminary
Prospectus) and the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be subject to any
security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered to the Trust
pursuant to the Trust Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and will conform to the description thereof contained in the
Prospectus.
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<PAGE> 7
(C) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the guarantee
trustee for the benefit of the Trust, will constitute a valid and
legally binding obligation of the Company and will conform to the
description thereof contained in the Registration Statement and the
Prospectus.
(D) The Agreement as to Expenses and Liabilities to be
entered into by the Company and the Trust (the "Expense Agreement")
has been duly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and legally binding
obligations of the Company and will conform to the description thereof
contained in the Registration Statement and the Prospectus.
(ix) The Offerors and the Subsidiaries have complied in all
material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and
operation of their properties or the conduct of their businesses as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) and as currently being conducted, except in each case for
any such noncompliance which would not have a material adverse effect
on the condition (financial or otherwise), earnings business,
prospects, affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis. Neither the Company nor any
non-banking subsidiary of the Company directly or indirectly engages
in any activity prohibited by the Board of Governors of the Federal
Reserve System or the BHC Act or which is not listed at 12 C.F.R.
225.25.
(x) The Offerors and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, any Preliminary Prospectus) and as currently being
conducted in all material respects, except where the failure to obtain
or possess any Permit would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis. All such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are in all material respects complying
therewith, and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the holder of
any such Permit, subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the Prospectus is not
in existence, any Preliminary Prospectus) except where such
revocation, termination or impairment would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business, prospects, affairs, or
results of operations of the Company and the Subsidiaries on a
consolidated basis. Such Permits contain no restrictions that would
materially impair the ability of the Company or the Subsidiaries to
conduct their businesses in the manner consistent with their past
practices. Neither the Offerors nor any of the Subsidiaries have
received notice or otherwise has knowledge of any proceeding or action
relating to the revocation or modification of any such Permit except
where such revocation, termination or impairment would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xi) Neither of the Offerors nor any of the Subsidiaries are
in breach or violation of their corporate charter, by-laws or other
governing documents (including without
7
<PAGE> 8
limitation, the Trust Agreement) in any material respect. Neither of
the Offerors nor any of the Subsidiaries is, and to the knowledge of
the Offerors no other party is, in violation, breach or default (with
or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, Permit or any other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, which such breach, violation or default could have a material
adverse effect on the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the Company
and the Subsidiaries on a consolidated basis, and to the knowledge of
the Offerors, no other party has asserted that the Offerors or any of
the Subsidiaries is in such violation, breach or default (provided
that the foregoing shall not apply to defaults by borrowers from the
Bank), or (B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus), any
order, decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties the breach, violation or default of
which could have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis.
(xii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Registration Statement and the Prospectus (or, if the Prospectus in
not in existence, any Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or
assets of the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, constitute a breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the charter or
by-laws of the Company or the Subsidiaries, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to
which the Offerors or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or any order,
decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offerors or the Subsidiaries or
any of their respective properties which conflict, creation,
imposition, breach, violation or default would have either singly or
in the aggregate a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis. No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the
Trust Agreement, the Indenture, the Guarantee, the Registration
Statement and the Prospectus (or any Preliminary Prospectus), except
such as have been obtained under the 1933 Act and the Trust Indenture
Act and from the American Stock Exchange, Inc. relating to the listing
of the Designated Preferred Securities, and such as may be required
under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriter.
(xiii) The Offerors have all requisite corporate power and
authority to enter into this Agreement and this Agreement has been
duly and validly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding agreement of the
Offerors, enforceable against the Offerors in accordance with its
terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
8
<PAGE> 9
affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be limited
under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly
authorized by the Company, and, when executed and delivered by the
Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act and
will conform to the description thereof contained in the Prospectus.
(xiv) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus) or such as
do not materially affect the value of such property in the aggregate
and do not materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the Company
or the Subsidiaries hold real or personal property are valid, existing
and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with
the use made or proposed to be made of such real or personal property,
and neither the Company nor any of the Subsidiaries is in default in
any material respect of any of the terms or provisions of any leases,
except, in each case where the failure to so possess or the existence
of such default would not individually or on the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xv) KPMG LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries,
including the notes thereto, incorporated by reference in the
Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xvi) The consolidated financial statements including the
notes thereto, incorporated by reference in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus) with respect to the Company and the
Subsidiaries comply in all material respects with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for the
periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. The
selected consolidated financial data concerning the Offerors and the
Subsidiaries included in the Registration Statement and the Prospectus
(or any Preliminary Prospectus) comply in all material respects with
the 1933 Act and the 1933 Act Regulations, present fairly the
information set forth therein, and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Offerors and the Subsidiaries in the Registration Statement and the
Prospectus (or any Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or any Preliminary Prospectus) comply in
all material respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information shown therein, and to the extent
applicable have been compiled on a basis consistent with the
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<PAGE> 10
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or any
Preliminary Prospectus).
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, any Preliminary Prospectus), except as
otherwise stated therein:
(A) neither of the Offerors nor any of the Subsidiaries
has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(B) there has not been any material adverse change in,
or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries
have incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business which is material to the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(D) neither of the Offerors has declared or paid any
dividend other than the Company's regular dividends on its common, and
neither of the Offerors nor any of the Subsidiaries has become
delinquent in the payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases
or, other than in the ordinary course of business, short-term
borrowings of the Offerors or the Subsidiaries.
(xviii) Except as set forth in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors,
threatened, against or affecting the Offerors or the Subsidiaries or
any of their respective properties before or by any court or any
regulatory, administrative or governmental official, commission,
board, agency or other authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding could have a material
adverse effect on the consummation of this Agreement or the
transactions contemplated herein or the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Registration
Statement or the Prospectus (or any Preliminary Prospectus) and is not
so disclosed.
(xix) There are no contracts or other documents required to
be filed as exhibits to the Registration Statement by the 1933 Act or
the 1933 Act Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as exhibits or
incorporated by reference to the Registration Statement, or that are
required to be summarized in the
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<PAGE> 11
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) that are not so summarized.
(xx) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the Designated Preferred
Securities, and neither of the Offerors is aware of any such action
taken or to be taken by any affiliate of the Offerors.
(xxi) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in
existence, any Preliminary Prospectus) and neither the Offerors nor
the Subsidiaries have received any notice of infringement or conflict
with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, business,
prospects, affairs or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do not know of
any basis for any such infringement or conflict.
(xxii) Except as adequately disclosed in the Prospectus (or,
if the Prospectus is not in existence, any Preliminary Prospectus), no
labor dispute involving the Company or the Subsidiaries exists or, to
the knowledge of the Offerors, is imminent which might be expected to
have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects, affairs or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Prospectus (or, if
the Prospectus is not in existence, any Preliminary Prospectus).
Neither the Company nor any of the Subsidiaries have received notice
of any existing or threatened labor dispute by the employees of any of
its principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects, affairs or results of
operations of the Company and the Subsidiaries on a consolidated
basis.
(xxiii) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, business,
prospects, affairs or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. The Offerors have no knowledge
of any tax deficiency which has been or might be assessed against the
Offerors or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, business, prospects,
affairs or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxiv) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, any
Preliminary Prospectus) and each contract, agreement and instrument
filed as an exhibit to the Registration Statement is in full force and
effect and is the legal, valid and binding agreement of the Offerors
or the Subsidiaries, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or
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<PAGE> 12
other laws relating to or affecting creditors' rights generally.
Except as disclosed in the Prospectus (or any Preliminary Prospectus),
to the knowledge of the Offerors, no other party to any such agreement
is (with or without notice or lapse of time or both) in breach or
default in any material respect thereunder.
(xxv) No relationship, direct or indirect, exists between or
among the Offerors or the Subsidiaries, on the one hand, and the
directors, officers, trustees, shareholders, customers or suppliers of
the Offerors or the Subsidiaries, on the other hand, which is required
to be described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, any Preliminary Prospectus)
which is not adequately described therein.
(xxvi) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering
and sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of
the Designated Preferred Securities except as adequately disclosed in
the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, any Preliminary Prospectus).
(xxvii) The Designated Preferred Securities have been
approved for trading on The American Stock Exchange, Inc. subject to
official notice of issuance.
(xxviii) Except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions required to be described therein, on the
ability of any of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay any indebtedness
owed to the Company, (B) to make any loans or advances to, or
investments in, the Offerors or (C) to transfer any of its property or
assets to the Offerors.
(xxix) Neither of the Offerors is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxx) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriter proposes to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriter may from time to time thereafter reduce
the public offering price and change the other selling terms, provided the
proceeds to the Trust shall not be reduced as a result of such reduction or
change.
The Underwriter may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriter as the Underwriter may elect to dealers
chosen by it (the "Selected Dealers") at the public offering price set forth in
the Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriter may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
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<PAGE> 13
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriter, from time to
time without charge, as soon as available, as many copies as the Underwriter may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) any Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to any Preliminary Prospectus or to the
Prospectus of which the Underwriter shall not previously have been advised in
writing and provided a copy a reasonable time prior to the proposed filings
thereof or to which the Underwriter or the Underwriter's counsel shall object.
If it is necessary, in the Offerors' reasonable
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<PAGE> 14
opinion or in the reasonable opinion of the Offerors' counsel to amend or
supplement the Registration Statement or the Prospectus in connection with the
distribution of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the Prospectus, as
the case may be, by preparing and filing with the Commission (provided the
Underwriter or the Underwriter's counsel does not object), and furnishing to the
Underwriter such number of copies as the Underwriter may reasonably request of
an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to the Underwriter and the Underwriter's
counsel). If any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus to correct an untrue statement of a material fact
or to include a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, or if for any
reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the Commission, and
furnishing to the Underwriter, such number of copies as the Underwriter may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Prospectus (in form and substance satisfactory to the
Underwriter and the Underwriter's counsel) so that, as so amended or
supplemented, the Prospectus shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with the Underwriter and the
Underwriter's counsel in order to qualify the Designated Preferred Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter may reasonably request and shall continue such
qualifications in effect so long as may be advisable for distribution of the
Designated Preferred Securities; provided, however, that the Offerors shall not
be required to qualify to do business as a foreign corporation or file a general
consent to service of process in any jurisdiction in connection with the
foregoing. The Offerors shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Designated Preferred
Securities have been qualified as above. The Offerors will notify the
Underwriter immediately of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities or threat thereof in any
jurisdiction.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to the Underwriter as soon as practicable, but in any event not later
than 16 months after the Effective Date, a consolidated earnings statement of
the Offerors conforming with the requirements of Section 11(a) of the 1933 Act
and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall
furnish to the Underwriter copies of all reports and communications (financial
or otherwise) furnished by the Offerors to the holders of the Designated
Preferred Securities as a class, copies of all reports and financial statements
filed with or furnished to the Commission (other than portions for which
confidential treatment has been obtained from the Commission) or with any
national securities exchange or The Nasdaq Stock Market's National Market and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Underwriter may reasonably request,
other than such documents, reports and information for which the Offerors has
the legal obligation not to reveal to the Underwriter.
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<PAGE> 15
(i) For a period of 30 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities other than pursuant to
this Agreement, any other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially similar to the
Designated Preferred Securities, including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible into or
exchangeable for or that represent the right to receive any such beneficial
interest or substantially similar securities, without the prior written consent
of the Underwriter.
(j) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become listed for trading on The American
Stock Exchange, Inc. and to remain so quoted for at least five years from the
Effective Date or for such shorter period as may be specified in a written
consent of the Underwriter, provided this shall not prevent the Company from
redeeming the Designated Preferred Securities pursuant to the terms of the Trust
Agreement. If the Designated Preferred Securities are exchanged for Debentures,
the Company will use its best efforts to have the Debentures promptly listed for
trading on The American Stock Exchange, Inc. or other organization on which the
Designated Preferred Securities are then listed, and to have the Debentures
promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriter's
Option to purchase the Option Preferred Securities shall expire, or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, and there will not be any material
change in the financial position, capital stock, or any material increase in
long-term debt, obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the
date hereof, without the prior written consent of the Underwriter, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, any repayment or notice of
prepayment) of any of the Offerors' securities, other than common stock of the
Company and the redemption of the Preferred Securities pursuant to their terms.
(m) The Offerors shall not take, directly or indirectly, any
action designed to result in or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any security of the Offerors to facilitate the sale or resale of the Designated
Preferred Securities and the Offerors are not aware of any such action taken or
to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities (the "Offering") without the prior written consent of the
Underwriter.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated
or the sale of the Designated Preferred Securities to the Underwriter is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
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<PAGE> 16
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, any Preliminary Prospectus or Prospectuses,
the Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), and the Preliminary and Final Blue Sky Memoranda and any legal
investment surveys and any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors' counsel
and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as the
Underwriter may request, including all filing fees and fees and disbursements of
counsel for the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto;
(d) all fees and expenses incurred in connection with filings
made with the NASD and the Depository Trust Company;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on The American Stock Exchange, Inc.;
(f) the cost of furnishing to the Underwriter copies of the
initial registration statements, any Preliminary Prospectus, the Registration
Statement and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and
the fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriter;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; and
(j) all other costs and expenses incident to the performance of
the obligations of the Company hereunder and under the Trust Agreement that are
not otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof, the
Company will pay the Underwriter its accountable out-of-pocket expenses in
connection herewith or in contemplation of the performance of its obligations
hereunder, including without limitation travel expenses, reasonable fees,
expenses and disbursements of counsel or other out-of-pocket expenses incurred
by the Underwriter in connection with any discussion of the Offering or the
contents of the Registration Statement, any investigation of the Offerors and
the Subsidiaries, or any preparation for the marketing, purchase, sale or
delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriter
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<PAGE> 17
other than in accordance with paragraph (c) above, or for the reimbursement of
any expenses of the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Firm Preferred Securities and, following
exercise of the Option granted by the Offerors in Section 1 of this Agreement,
the Option Preferred Securities, are subject, in the Underwriter's sole
discretion, to the accuracy of and compliance with the representations and
warranties and agreements of the Offerors herein as of the date hereof and as of
the Closing Date (or in the case of the Option Preferred Securities, if any, as
of the Option Closing Date), to the accuracy of the written statements of the
Offerors made pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as the Underwriter
may agree to in writing. If required, the Prospectus and any amendment or
supplement thereto shall have been timely filed in accordance with Rule 424(b)
and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto shall have been issued under the 1933 Act or any applicable
state securities laws and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Offerors or the
Underwriter, shall be contemplated by the Commission or any state authority. Any
request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to the Underwriter and complied with to the
satisfaction of the Underwriter and counsel for the Underwriter.
(b) The Underwriter shall not have advised the Company at or
before the Closing Date (and, if applicable, the Option Closing Date) that the
Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in the Underwriter's opinion, is material or omits to state a
fact which, in the Underwriter's opinion, is material and is required to be
stated therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Trust Agreement, and
the Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriter, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Armstrong Teasdale LLP, counsel for the Offerors, shall have
furnished to the Underwriter their signed opinion, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
counsel for the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware, and
is duly registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is duly incorporated, organized or created, as the case may
be, validly existing and in good standing under the laws of its
jurisdiction of
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incorporation, organization or creation, as the case may be. Each of the
Company and the Subsidiaries has full corporate power and authority to own
or lease its properties and to conduct its business as such business is
described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock of the Subsidiaries have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831 and, to the best of such counsel's knowledge,
except as disclosed in the Prospectus, there are no outstanding rights,
options or warrants to purchase any such shares or securities convertible
into or exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee of the
Company and the equity securities of the Trust conform to the description
thereof contained in the Prospectus in all material respects. The capital
stock of the Company authorized and issued as of June 30, 1999 is as set
forth under the caption "Capitalization" in the Prospectus, has been duly
authorized and validly issued, and is fully paid and non-assessable. To the
best of such counsel's knowledge, there are no outstanding rights, options
or warrants to purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or arrangements to issue,
any shares of capital stock of the Company or equity securities of the
Trust, except as described in the Prospectus.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the terms and
conditions of this Agreement, the Trust Agreement and the Indenture have
been duly authorized by all necessary actions of the Offerors. All of the
Designated Preferred Securities have been duly and validly authorized and,
when delivered in accordance with this Agreement will be duly and validly
issued, fully paid and nonassessable, and will conform to the description
thereof in the Registration Statement, the Prospectus and the Trust
Agreement. The Designated Preferred Securities have been approved for
trading on The American Stock Exchange, Inc., subject to official notice of
issuance. In connection with the issuance of the Designated Preferred
Securities, there are no preemptive or other rights to subscribe for or to
purchase any shares of capital stock or equity securities of the Offerors
or the subsidiaries. Other than as disclosed in the Prospectus there are no
restrictions upon the voting or transfer of any shares of capital stock or
equity securities of the Offerors or the Subsidiaries pursuant to the
corporate charter, by-laws or other governing documents (including without
limitation, the Trust Agreement) of the Offerors or the Subsidiaries, or,
to the best of such counsel's knowledge, any agreement or other instrument
to which either Offeror or any of the Subsidiaries is a party or by which
either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust
power to enter into and perform their obligations under this Agreement, and
this Agreement has been duly and validly authorized, executed and delivered
by the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a nonmaterial breach.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
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<PAGE> 19
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity.
(vi) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(vii) The Expense Agreement has been duly authorized,
executed and delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
(viii) To the best of such counsel's knowledge, neither of
the Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or to the best of such counsel's knowledge,
any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license or any other agreement or
instrument to which either Offeror or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or regulation of
any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors and
the Subsidiaries on a consolidated basis. No authorization, approval,
consent or order of, or filing, registration or qualification with, any
person (including, without limitation, any court, governmental body or
authority) is required under Missouri law in connection with the
transactions contemplated by this Agreement in connection with the purchase
and distribution of the Designated Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge holders of
securities of the Offerors either do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no action,
suit or proceeding at law or in equity is pending or threatened in writing
to which the Offerors or the Subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened in writing against or
affecting the
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<PAGE> 20
Offerors or the Subsidiaries or any of their properties, before or by any
court or governmental official, commission, board or other administrative
agency, authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to have a material
adverse effect on the consummation of this Agreement or the issuance and
sale of the Designated Preferred Securities as contemplated herein or the
condition (financial or otherwise), earnings, business, or results of
operations of the Offerors and the Subsidiaries on a consolidated basis or
which is required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act and the Trust Indenture Act, and
except such as may be required under state securities laws or
Interpretations or Rules of the NASD in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriter.
(xii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial statements or
other financial and statistical data included therein or omitted therefrom
and Underwriter's Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness or issuance. The documents incorporated by reference in
the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements or other financial
and statistical data included therein or omitted therefrom and
Underwriter's Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations as of their respective dates
of filing.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or filed.
(xiv) The statements under the captions "Description of the
Preferred Securities," "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," and "ERISA Considerations" in the
Prospectus, insofar as such statements constitute a summary of legal and
regulatory matters, documents or instruments referred to therein are
accurate descriptions of the matters summarized therein in all material
respects and fairly present the information called for with respect to such
legal matters, documents and instruments, other than financial and
statistical data as to which said counsel expresses no opinion or belief.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made within the time period required by Rule 424(b); to the best of
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
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<PAGE> 21
(xvi) Except as described in or contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no
contractual encumbrances or restrictions, or material legal
restrictions required to be described therein on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay indebtedness owed to the Offerors, (B) to
make any loans or advances to, or investments in, the Offerors or (C)
to transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, (A) the
business and operations of the Offerors and the Subsidiaries comply in
all material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Offerors
and the Subsidiaries on a consolidated basis, except in those instances
where non-compliance would not materially impair the ability of the
Offerors and the Subsidiaries to conduct their business; and (B) the
Offerors and the Subsidiaries possess and are operating in all material
respects in compliance with the terms, provisions and conditions of all
permits, consents, licenses, franchises and governmental and regulatory
authorizations ("Permits") and required to conduct their businesses as
described in the Prospectus and which are material to the Offerors and
the Subsidiaries on a consolidated basis, except in those instances
where the loss thereof or non-compliance therewith would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the
Offerors and the Subsidiaries on a consolidated basis; to the best of
such counsel's knowledge, all such Permits are valid and in full force
and effect, and, to the best of such counsel's knowledge, no action,
suit or proceeding is pending or threatened which may lead to the
revocation, termination, suspension or non-renewal of any such Permit,
except in those instances where the loss thereof or non-compliance
therewith would not materially impair the ability of the Offerors or
the Subsidiaries to conduct their businesses.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (xiii) and (xvii) hereof, and certificates of public
officials. In addition, it is contemplated that such counsel in giving the above
opinion shall rely on the opinion of Richards, Layton & Finger, special Delaware
counsel to the Offerors as to certain matters relating to the Trust and the
Designated Preferred Securities which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with the Underwriter and the
Underwriter's counsel, at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed in detail the contents
of the Registration Statement and Prospectus (without taking further action to
verify independently the statements made in the Registration Statement and the
Prospectus, and without assuming responsibility for the accuracy or completeness
of such statements, except to the extent expressly provided above) and such
counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or Underwriter's
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of a material fact or omitted 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 (B)
that the Prospectus or any amendment or supplement thereto (except for the
financial statements and related schedules and statistical data
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<PAGE> 22
included therein or omitted therefrom or Underwriter's Information, as to which
such counsel need express no opinion), at the time the Registration Statement
became effective (or, if the term "Prospectus" refers to the prospectus first
filed pursuant to Rule 424(b) of the 1933 Act Regulations, at the time the
Prospectus was issued), at the time any such amended or supplemented Prospectus
was issued, at the Closing Date and, if applicable, the Option Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Richards, Layton & Finger, special Delaware counsel to the
Offerors, shall have furnished to the Underwriter their signed opinion, dated as
of Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting Agreement by the
Trust, and the performance by the Trust of its obligations thereunder, have
been authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Designated Preferred Securities will be,
subject to the qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of certificates
to evidence the Designated Preferred Securities has been approved by the
Trust and is in due and proper form and complies with all material
requirements of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State of
Delaware. Such opinion may note that the holders of Designated Preferred
Securities may be obligated to make payments as set forth in the Trust
Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
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Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) Lewis, Rice & Fingersh, L.C., counsel for the Underwriter,
shall have furnished the Underwriter their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as the Underwriter may
reasonably request and there shall have been furnished to such counsel such
documents and other information as they may request to enable them to pass on
such matters. In giving such opinion, Lewis, Rice & Fingersh, L.C. may rely as
to matters of fact upon statements and certifications of officers of the
Offerors and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Missouri, and upon the
opinions of Armstrong Teasdale LLP and Richards, Layton & Finger described
herein.
(g) On the date of this Agreement and on the Closing Date (and,
if applicable, any Option Closing Date), the Underwriter shall have received
from KPMG LLP, a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Underwriter, confirming that they are independent
public accountants with respect to Company, within the meaning of the 1933 Act
and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements
of the Company audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in SAS No.
71, "Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and 1933 Act Regulations
or are not in conformity with U.S. generally accepted accounting principles
applied on a basis substantially consistent, except as noted in the
Registration Statement, with the basis for the audited consolidated
financial statements of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting
an audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such
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<PAGE> 24
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the Underwriter, in
each case as compared with amounts shown in the latest unaudited
interim consolidated statement of financial condition of the Company
incorporated by reference in the Registration Statement except in each
case for changes, increases or decreases which the Registration
Statement specifically discloses, have occurred or may occur or which
are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements of the Company
included in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the consolidated
interest income, net interest income, or net income of the Company or
in the per share amount of net income of the Company, or any changes,
decreases or increases in any other items specified by the
Underwriter, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriter, except in each case for increases or
decreases which the Registration Statement discloses have occurred or
may occur, or which are described in such letter;
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Underwriter which are derived
from the general accounting records and consolidated financial statements
of the Company incorporated by reference in the Registration Statement and
have compared such amounts, percentages and financial information with the
accounting records and the material derived from such records and
consolidated financial statements of the Company and have found them to be
in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B), above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriter that the Underwriter shall have determined, after discussions with
officers of the Company, responsible for financial and accounting matters, that
such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Underwriter, or (z) reflect a
material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriter in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
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<PAGE> 25
(h) At the Closing Date and, if applicable, the Option Closing
Date, the Underwriter shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company dated as of the
Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in Section 2(a) hereof
are accurate as of the Closing Date and, if applicable, the Option Closing Date,
and that the Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to such
Closing Date; (ii) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or otherwise), earnings,
business, prospects, affairs or results of operations of the Company and the
Subsidiaries on a consolidated basis; (iii) since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; (iv)
they have carefully examined the Registration Statement and the Prospectus as
amended or supplemented and nothing has come to their attention that would lead
them to believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue dates,
contained, and the Prospectus as amended or supplemented at such Closing Date
(and, if applicable, the Option Closing Date), contains any untrue statement of
a material fact, or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) covering such
other matters as the Underwriter may reasonably request. The officers'
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing
Date, the Underwriter shall have received a certificate of an Administrative
Trustee of the Trust to the effect that to the best of his or her knowledge
based upon a reasonable investigation, the representations and warranties of the
Trust in this Agreement are true and correct as though made on and as of the
Closing Date (and, if applicable, the Option Closing Date); the Trust has
complied with all the agreements and satisfied all the conditions required by
this Agreement to be performed or satisfied by the Trust on or prior to the
Closing Date, and since the most recent date as of which information is given in
the Prospectus, except as contemplated by the Prospectus, the Trust has not
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary course of business
and there has not been any material adverse change in the condition (financial
or otherwise) of the Trust.
(j) On the Closing Date, the Underwriter shall have received
duly executed counterparts of the Trust Agreement, the Guarantee, the Indenture
and the Expense Agreement.
(k) The NASD, upon review of the terms of the public offering of
the Designated Preferred Securities, shall not have objected to the
Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to the Underwriter and counsel
for the Underwriter all such other documents, certificates and opinions as such
parties shall have reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Underwriter. The Offerors shall furnish the
Underwriter with conformed copies of such opinions, certificates, letters and
other documents as the Underwriter shall reasonably request.
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If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriter's obligations hereunder may be terminated by the Underwriter on
notice to the Company at, or at any time before, the Closing Date or the Option
Closing Date, as applicable. Any such termination shall be without liability of
the Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify and
hold harmless the Underwriter, each of its directors, officers and agents, and
each person, if any, who controls the Underwriter within the meaning of the 1933
Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based (i) upon any untrue
statement or alleged untrue statement of a material fact made by the Company or
the Trust contained in Section 2 of this Agreement (or any certificate delivered
by the Company or the Trust pursuant to Sections 6(h), 6(i) or 6(l) hereto) or
the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company or the Trust specifically for that purpose or based upon written
information furnished by the Company or the Trust filed in any state or other
jurisdiction in order to qualify any of the Designated Preferred Securities
under the securities laws thereof (any such application, document or information
being hereinafter referred to as a "Blue Sky Application"), (iii) any omission
or alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment of supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a 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 (iv) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriter's
Information; provided, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter (or of any person controlling the Underwriter) to the extent any
such losses, claims, damages, liabilities or expenses directly results from the
fact that such Underwriter sold Designated Preferred Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (as amended or supplemented if any
amendments or supplements thereto shall have been furnished to the Underwriter
in sufficient time to distribute same with or prior to the written confirmation
of the sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or send
such person such document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any such
indemnified party.
26
<PAGE> 27
(b) The Underwriter agrees to indemnify and hold harmless each
Offeror, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls an Offeror within the meaning of
the 1933 Act, to the same extent as required by the foregoing indemnity from the
Company to the Underwriter, but only with respect to the Underwriter's
Information. The foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against
any indemnified party or any person controlling an indemnified party in respect
of which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party, or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party. Each indemnified party and each controlling
person, as a condition of such indemnity, shall use reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. The indemnifying party shall not be liable for any settlement of any such
action effected without its written consent, but if there shall be a final
judgment for the plaintiff in any such action, the indemnifying party shall
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
27
<PAGE> 28
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriter on the other from the offering of the Designated Preferred
Securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriter on the other 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 or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Offerors and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls the
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriter under this paragraph (d) shall be in addition
to any liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of the Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling the Underwriter or an
28
<PAGE> 29
Offeror) shall be entitled to the benefits of the indemnity,contribution and
reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any and
all losses, claims, damages or liabilities that may become due from the Trust
under this Section 7.
8. TERMINATION. The Underwriter shall have the right to terminate
this Agreement at any time at or prior to the Closing Date or, with respect to
the Underwriter's obligation to purchase the Option Preferred Securities, at any
time at or prior to the Option Closing Date, without liability on the part of
the Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which in the judgment
of the Underwriter materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, business, prospects, affairs or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(d) There has occurred any outbreak of hostilities or other
calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
Underwriter's reasonable judgment, impracticable to market the Designated
Preferred Securities or enforce contracts for the sale of the Designated
Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or The Nasdaq Stock Market's National Market shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by either
federal or Missouri authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in the Underwriter's reasonable judgment,
has a material adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriter except as
provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time
29
<PAGE> 30
the Commission declares the Registration Statement effective. The Company shall
immediately notify the Underwriter when the Registration Statement becomes
effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Underwriter shall
release the Designated Preferred Securities for initial public offering, and the
Underwriter shall notify the Offerors immediately after it has taken any action
which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying the Underwriter or by the
Underwriter, by notifying either Offeror, except that the provisions of Sections
5 and 7 shall at all times be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Offerors and their officers and trustees set forth in or made pursuant to
this Agreement and the agreements of the Underwriter contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriter or controlling persons of
the Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Designated Preferred Securities.
11. NOTICES. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to Offerors shall be sent to 150 North
Meramac, Clayton, Missouri 63105, Attention: Fred H. Eller (with a copy to
Armstrong Teasdale LLP, One Metropolitan Square, St. Louis, Missouri 63102,
Attention: John L. Gillis, Jr., Esq.) and notices to the Underwriter shall be
sent to Stifel, Nicolaus & Company, Incorporated, 501 North Broadway, Ninth
Floor, St. Louis, Missouri 63102, Attention: Rick E. Maples (with a copy to
Lewis, Rice & Fingersh, L.C., 500 North Broadway, Suite 2000, St. Louis,
Missouri 63102, Attention: Thomas C. Erb, Esq.).
12. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Underwriter and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriter, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
his status as such purchaser, from the Underwriter of the Designated Preferred
Securities.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the choice of law or conflicts of
law principles thereof.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and the
Underwriter in accordance with its terms.
Very truly yours,
30
<PAGE> 31
ENTERBANK HOLDINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
EBH CAPITAL TRUST I
By:
--------------------------------------
Name:
------------------------------------
Title: Administrative Trustee
----------------------------------
CONFIRMED AND ACCEPTED,
as of , 1999.
----------------------------
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
31
<PAGE> 32
EXHIBIT A
LIST OF SUBSIDIARIES
Enterprise Bank
EBH Capital Trust I
[To be completed.]
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF TRUST OF
EBH CAPITAL TRUST
THIS Certificate of Trust of EBH Capital Trust (the "Trust") is being
duly executed and filed on behalf of the Trust by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is EBH Capital Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn:
Corporate Trust Administration.
3. Effective Date: This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: /s/ DONALD G. MACKELCAN
-------------------------------------------
Name: Donald G. MacKelcan
Title: Vice President
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:30 AM 09/09/1999
991376053 - 3094185
<PAGE> 1
EXHIBIT 4.2
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:30 AM 09/17/1999
991390106 - 3094185
RESTATED CERTIFICATE OF TRUST
OF
EBH CAPITAL TRUST
This Restated Certificate of Trust of EBH Capital Trust (the "Trust"),
dated September 17, 1999, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to amend and restate the
Certificate of Trust of the Trust, which was filed with the Secretary of State
of the State of Delaware on September 9, 1999, under the Delaware Business Trust
Act (12 Del. C. Section 3801, et seq.) (the "Act").
The original Certificate of Trust is hereby amended and restated in
its entirety, pursuant to Section 3810(c)(l) of the Act, to read as follows:
1. Name. The name of the business trust formed hereby is EBH
Capital Trust I.
2. Delaware Trustee. The business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective
upon the date and time of filing.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate of
Trust in accordance with Section 3811(a)(2) of the Act.
WILMINGTON TRUST COMPANY, not
in its individual capacity, but
solely as trustee
By: /s/ PATRICIA A. EVANS
------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
<PAGE> 1
EXHIBIT 4.3
EBH CAPITAL TRUST I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of September __, 1999, is between (i)
ENTERBANK HOLDINGS, INC., a Delaware corporation (the "Depositor"), and (ii)
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Trustee"). The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "EBH
Capital Trust I."
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor.
3. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust.
4. The Trustee is hereby authorized and directed to execute and file a
certificate of trust in the form of exhibit A attached hereto with the Delaware
Secretary of State in accordance with the provisions of the Business Trust Act.
5. The Depositor and the Trustee will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein (collectively, the "Trust Securities"). Prior to the
execution and delivery of such amended and restated Trust Agreement, the Trustee
shall not have any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or as may be necessary to
obtain prior to such execution and delivery of any licenses, consents or
approvals required by applicable law or otherwise.
6. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and (b) if required, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) at their
discretion, to file with the New York Stock Exchange or any other national stock
exchange or The Nasdaq National Market (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents,
<PAGE> 2
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor and the Underwriter named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement.
7. (a) The Trustee and its officers, directors, agents and servants
(collectively, the "Fiduciary Indemnified Persons") shall not be liable,
responsible or accountable in damages or otherwise to the Trust, the Depositor,
the Trustees or any holder of the Trust Securities (the Trust, the Depositor and
any holder of the Trust Securities being a "Covered Person") for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by the Fiduciary Indemnified Persons in good faith on behalf of the Trust and in
a manner the Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement or by law, except that the Fiduciary Indemnified Persons shall be
liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Persons reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly be
paid.
(c) The Depositor agrees, to the fullest extent permitted by
applicable law, (i) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement of Trust, except that no
Fiduciary Indemnified Persons shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by the Fiduciary Indemnified Persons by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
(d) The provisions of Section 7 shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
2
<PAGE> 3
8. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor, who may increase or decrease the
number of Trustees; provided, however, that, to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable Delaware law. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty (30) days' prior written notice to the
Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
10. This Trust Agreement may be executed in one or more counterparts.
11. The Trust may terminate without issuing any Trust Securities at the
election of the Depositor.
[Signature Page Follows]
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Trust Agreement to be duly executed as of the date first
written above.
ENTERBANK HOLDINGS, INC.,
as Depositor
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
4
<PAGE> 5
EXHIBIT A
CERTIFICATE OF TRUST OF
EBH CAPITAL TRUST I
THIS Certificate of Trust of EBH Capital Trust I (the "Trust") is being
duly executed and filed on behalf of the Trust by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is EBH Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
<PAGE> 1
EXHIBIT 4.4
----------------------------------------------------------------
EBH CAPITAL TRUST I
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
ENTERBANK HOLDINGS, INC., AS DEPOSITOR
WILMINGTON TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF ________________, 1999
----------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I - DEFINED TERMS...................................................................................1
1.01 DEFINITIONS.....................................................................................1
ARTICLE II - ESTABLISHMENT OF THE TRUST......................................................................9
2.01 NAME............................................................................................9
2.02 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.....................................9
2.03 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES................................10
2.04 ISSUANCE OF THE PREFERRED SECURITIES...........................................................10
2.05 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF JUNIOR
SUBORDINATED DEBENTURES........................................................................10
2.06 DECLARATION OF TRUST...........................................................................10
2.07 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS...............................................11
2.08 ASSETS OF TRUST................................................................................15
2.09 TITLE TO TRUST PROPERTY........................................................................15
ARTICLE III - PAYMENT ACCOUNT...............................................................................15
3.01 PAYMENT ACCOUNT................................................................................15
ARTICLE IV - DISTRIBUTIONS; REDEMPTION......................................................................15
4.01 DISTRIBUTIONS..................................................................................15
4.02 REDEMPTION.....................................................................................16
4.03 SUBORDINATION OF COMMON SECURITIES.............................................................18
4.04 PAYMENT PROCEDURES.............................................................................19
4.05 TAX RETURNS AND REPORTS........................................................................19
4.06 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST....................................................20
4.07 PAYMENTS UNDER INDENTURE.......................................................................20
ARTICLE V - TRUST SECURITIES CERTIFICATES..................................................................20
5.01 INITIAL OWNERSHIP..............................................................................20
5.02 THE TRUST SECURITIES CERTIFICATES..............................................................20
5.03 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES........................................20
5.04 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES CERTIFICATES.....................20
5.05 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES.............................21
5.06 PERSONS DEEMED SECURITYHOLDERS.................................................................22
5.07 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.........................................22
</TABLE>
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<TABLE>
<S> <C> <C>
5.08 MAINTENANCE OF OFFICE OR AGENCY................................................................22
5.09 APPOINTMENT OF PAYING AGENT....................................................................22
5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR....................................................23
5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES CERTIFICATE....................23
5.12 NOTICES TO CLEARING AGENCY.....................................................................24
5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES...................................................24
5.14 RIGHTS OF SECURITYHOLDERS......................................................................25
ARTICLE VI - ACTS OF SECURITYHOLDERS; MEETINGS; VOTING......................................................26
6.01 LIMITATIONS ON VOTING RIGHTS...................................................................26
6.02 NOTICE OF MEETINGS.............................................................................27
6.03 MEETINGS OF HOLDERS OF PREFERRED SECURITIES....................................................27
6.04 VOTING RIGHTS..................................................................................27
6.05 PROXIES, ETC...................................................................................27
6.06 SECURITYHOLDER ACTION BY WRITTEN CONSENT.......................................................28
6.07 RECORD DATE FOR VOTING AND OTHER PURPOSES......................................................28
6.08 ACTS OF SECURITYHOLDERS........................................................................28
6.09 INSPECTION OF RECORDS..........................................................................29
ARTICLE VII - REPRESENTATIONS AND WARRANTIES................................................................29
7.01 REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY AND THE PROPERTY TRUSTEE...................29
7.02 REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY AND THE DELAWARE TRUSTEE...................30
7.03 REPRESENTATION AND WARRANTIES OF DEPOSITOR.....................................................31
ARTICLE VIII - THE TRUSTEES.................................................................................32
8.01 CERTAIN DUTIES AND RESPONSIBILITIES............................................................32
8.02 CERTAIN NOTICES................................................................................33
8.03 CERTAIN RIGHTS OF PROPERTY TRUSTEE.............................................................34
8.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.........................................36
8.05 MAY HOLD SECURITIES............................................................................36
8.06 COMPENSATION; INDEMNITY; FEES..................................................................36
8.07 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES...................................37
8.08 CONFLICTING INTERESTS..........................................................................38
8.09 CO-TRUSTEES AND SEPARATE TRUSTEE...............................................................38
8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............................................39
8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................................................40
8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS....................................41
8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST...................................41
8.14 REPORTS BY PROPERTY TRUSTEE....................................................................41
</TABLE>
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<TABLE>
<S> <C> <C>
8.15 REPORTS TO THE PROPERTY TRUSTEE................................................................42
8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT...............................................42
8.17 NUMBER OF TRUSTEES.............................................................................42
8.18 DELEGATION OF POWER............................................................................43
8.19 VOTING.........................................................................................43
ARTICLE IX - DISSOLUTION, LIQUIDATION AND MERGER............................................................43
9.01 DISSOLUTION UPON EXPIRATION DATE...............................................................43
9.02 EARLY DISSOLUTION..............................................................................43
9.03 TERMINATION....................................................................................44
9.04 LIQUIDATION....................................................................................44
9.05 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST............................45
ARTICLE X - MISCELLANEOUS PROVISIONS.......................................................................46
10.01 LIMITATION OF RIGHTS OF SECURITYHOLDERS........................................................46
10.02 AMENDMENT......................................................................................47
10.03 SEPARABILITY...................................................................................48
10.04 GOVERNING LAW..................................................................................48
10.05 PAYMENTS DUE ON NON-BUSINESS DAY...............................................................48
10.06 SUCCESSORS.....................................................................................48
10.07 HEADINGS.......................................................................................48
10.08 REPORTS, NOTICES AND DEMANDS...................................................................48
10.09 AGREEMENT NOT TO PETITION......................................................................49
10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.........................................49
10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE................................50
10.12 COUNTERPARTS...................................................................................50
</TABLE>
Exhibits
Exhibit A - Certificate of Trust
Exhibit B - Form of Certificate Depository Agreement
Exhibit C - Form of Common Securities Certificate
Exhibit D - Form of Expense Agreement
Exhibit E - Form of Preferred Securities Certificate
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<PAGE> 5
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________________,
1999, among (i) ENTERBANK HOLDINGS, INC., a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) WILMINGTON TRUST COMPANY, a
Delaware banking corporation duly organized and existing under the laws of
Delaware, as property trustee (the "Property Trustee"), (iii) WILMINGTON TRUST
COMPANY, with its home office located in the State of Delaware, as Delaware
trustee (the "Delaware Trustee," and, to the extent expressly provided herein,
in its separate corporate capacity and not in its capacity as Property Trustee
or Delaware Trustee, the "Trust Company"), (iv) JAMES C. WAGNER, an individual,
and JENNIFER S. SMITH, an individual, each of whose address is c/o Enterbank
Holdings, Inc., 150 North Meramec, Clayton, Missouri 63105 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and created EBH Capital Trust I, a business trust (the "Trust"),
pursuant to the Delaware Business Trust Act by the entering into of that
certain Trust Agreement, dated as of September __, 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 September 9, 1999, the form of which is attached 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, (i) the issuance of the Common Securities (as
defined below) by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities (as defined below) by the Trust pursuant to the
Underwriting Agreement, (iii) the acquisition by the Trust from the Depositor
of all of the right, title and interest in the Junior Subordinated Debentures
(as defined below), (iv) the appointment of the Property Trustee, and (v) the
appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
1.01 DEFINITIONS. For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
<PAGE> 6
(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) 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; and
(d) 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.
"Accelerated Maturity Date" has the meaning set forth in Section 1.01
of the Indenture.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and a given period, the amount of additional interest
accrued on interest in arrears and paid by the Depositor on a Like Amount of
Junior Subordinated Debentures for such period.
"Additional Sums" has the meaning specified in Section 2.05 of the
Indenture.
"Administrative Trustee" means each of James C. Wagner and Jennifer S.
Smith, solely in each such person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor Administrative Trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of or in respect of such Person under
the United States Bankruptcy Code or any other similar applicable
federal or state law, and the continuance of any such decree or order
unvacated and unstayed for a period of 90 days; or the commencement of
an involuntary case under the United States Bankruptcy Code in respect
of such Person, which shall continue undismissed for a period of 90
days or entry of an order for relief in such case; or the entry of a
decree or order of a court having jurisdiction in the premises for the
appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency
of such Person or of
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<PAGE> 7
its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to the
filing of a bankruptcy proceeding against it, or the filing by such
Person of a petition or answer or consent seeking liquidation or
reorganization under the United States Bankruptcy Code or other
similar applicable federal or state law, or the consent by such Person
to the filing of any such petition or to the appointment on the ground
of insolvency or bankruptcy of a receiver or custodian or liquidator
or trustee or assignee in bankruptcy or insolvency of such Person or
of its property, or such Person shall make a general assignment for
the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to
the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the State of Missouri or Delaware 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 Corporate Trust
Office of the Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as EXHIBIT B, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" means, as stated in the recitals to this Trust
Agreement, the certificate of trust filed with the Secretary of State of the
State of Delaware with respect to the Trust, in the form attached as EXHIBIT A,
as the same may be amended or restated from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Trust Agreement such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
3
<PAGE> 8
"Common Security" means a common undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $8.00 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as EXHIBIT
C.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee located at 1100 North Market Street, Wilmington, Delaware
19890, Attention: Corporate Trust Administration.
"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 under the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation, organized under the laws of Delaware and any successor thereto, as
trustee under the Indenture.
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.11(a),
and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et. seq. as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means any one of the following events that shall
have occurred and be continuing (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):
4
<PAGE> 9
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for
a period of 30 days; or
(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Property Trustee 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 defaulting Property Trustee 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 a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
EXHIBIT D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Extension Period" means the "Extended Interest Payment Period" as
defined in the Indenture.
"Global Subordinated Debenture" has the meaning specified in the
Indenture.
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Depositor and Property Trustee, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"Holder" means a Securityholder.
"Indenture" means the Subordinated Indenture, dated as of
_________________, 1999, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
5
<PAGE> 10
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Junior Subordinated Debentures" means the $________ aggregate
principal amount of the Depositor's ____% Junior Subordinated Debentures due
2029, 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 the principal
amount of Junior Subordinated Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities 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 Trust, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debentures are distributed.
"Liquidation Amount" means the stated amount of $8.00 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"Maturity Date" has the meaning set forth in Section 2.02 of the
Indenture.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President and by the Chief
Accounting Officer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
6
<PAGE> 11
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, but not an employee of any thereof, and who shall be reasonably
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred 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 Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been executed
and delivered pursuant to Sections 5.04, 5.05, 5.11 and 5.13;
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 Trustee, or any Affiliate of the Depositor or any
Trustee, shall be disregarded and deemed not to be Outstanding, except
that (i) in determining whether any Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee
knows to be so owned shall be so disregarded and (ii) the foregoing
shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees
and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees
the pledgee's right as to such Preferred Securities so owned.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate 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 5.09 and shall initially be the Trust Company.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid
7
<PAGE> 12
in respect of the Junior Subordinated Debentures will be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means a preferred undivided beneficial interest
in the assets of the Trust, designated "____% Cumulative Trust Preferred
Securities," having a Liquidation Amount of $8.00 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
EXHIBIT E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor Property Trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the Maturity Date
of the Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security to be
redeemed, the Liquidation Amount of such Trust Security, plus accumulated and
unpaid Distributions to the Redemption Date allocated on a pro rata basis
(based on Liquidation Amounts) among the Trust Securities to be redeemed.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" means a Person in whose name a Trust Security or
Trust Securities is registered in the Securities Register; any such Person is a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Trust" means EBH Capital Trust I, the Delaware business trust
continued hereby and which was created as stated in the recitals to this Trust
Agreement.
"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 all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification,
8
<PAGE> 13
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Company" has the meaning specified in the preamble to this
Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Trust Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Junior Subordinated Debentures, (b) the
rights of the Property Trustee under the Guarantee, (c) any cash on deposit in,
or owing to, the Payment Account and (d) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustee" or "Trustees" means, individually or collectively, any of
the Property Trustee, the Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement dated as of
_______________, 1999, among the Trust, the Depositor and the underwriters
named therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
2.01 NAME. The Trust heretofore created and continued hereby shall
continue to be known as "EBH CAPITAL TRUST I," as such name may be modified
from time to time by the Administrative Trustees following written notice to
the Holders of Trust Securities and the other Trustees, in which name the
Trustees may engage in the transactions contemplated hereby, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued.
2.02 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS. The
address of the Delaware Trustee in the State of Delaware is 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o Enterbank Holdings, Inc., 150
North Meramec, Clayton, Missouri 63105.
9
<PAGE> 14
2.03 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor in connection with
the Original Trust Agreement of the sum of $10, which constituted the initial
Trust Property. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
2.04 ISSUANCE OF THE PREFERRED SECURITIES. On ______________, 1999,
the Depositor and an Administrative Trustee, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.02 and deliver, in accordance with the
Underwriting Agreement, a Preferred Securities Certificate, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
Preferred Securities having an aggregate Liquidation Amount of $__________
against receipt of the aggregate purchase price of such Preferred Securities of
$_________, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee.
2.05 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
JUNIOR SUBORDINATED DEBENTURES. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.02 and deliver to the
Depositor a Common Securities Certificate, registered in the name of the
Depositor, in an aggregate amount of Common Securities having an aggregate
Liquidation Amount of $__________ against payment by the Depositor of such
amount. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Junior
Subordinated Debentures, registered in the name of the Property Trustee on
behalf of the Trust and having an aggregate principal amount equal to
$__________, and, in satisfaction of the purchase price for such Junior
Subordinated Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $__________.
2.06 DECLARATION OF TRUST. The exclusive purposes and functions of the
Trust are (a) to issue and sell Trust Securities and use the proceeds from such
sale to acquire the Junior Subordinated Debentures, and (b) to engage in those
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Trustees as trustees of the Trust, to have all the rights, powers
and duties to the extent set forth herein, and the 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 Securityholders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable
law with respect to accomplishing the purposes of the Trust. The Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property Trustee or
the Administrative Trustees set forth herein. The Delaware Trustee shall be one
of the Trustees of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act.
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2.07 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section and Article
VIII, and in accordance with the following provisions (i) and (ii),
the Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Administrative Trustees
to be appropriate in exercising the authority, express or implied,
otherwise granted to the Administrative Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative
Trustee, acting singly or jointly, shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust
Securities, including, without limitation, the
execution of the Trust Securities on behalf of the
Trust in accordance with this Trust Agreement, and
complying with the terms of the Underwriting
Agreement regarding the issuance and sale of the
Trust Securities;
(B) to cause the Trust to enter into, and
to execute, deliver and perform on behalf of the
Trust, the Expense Agreement and the Certificate
Depository Agreement and such other agreements or
documents as may be necessary or desirable in
connection with the purposes and function of the
Trust;
(C) to assist in the registration of the
Preferred Securities under the Securities Act of
1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the
Preferred Securities upon the American Stock
Exchange or such securities exchange or exchanges as
shall be determined by the Depositor and, if
required, the registration of the Preferred
Securities under the Exchange Act, and the
preparation and filing of all periodic and other
reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than
notices of default) and other information regarding
the Trust Securities and the Junior Subordinated
Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in
accordance with this Trust Agreement;
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(G) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the
State of Delaware;
(H) to take all action that may be
necessary or appropriate for the preservation and
the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory
business trust under the laws of the State of
Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited
liability of the Holders of the Preferred Securities
or to enable the Trust to effect the purposes for
which the Trust was created;
(I) the execution and delivery of an
application for a taxpayer identification number for
the Trust; and
(J) the taking of any action incidental to
the foregoing as the Administrative Trustees may
from time to time determine is necessary or
advisable to give effect to the terms of this Trust
Agreement for the benefit of the Securityholders
(without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) the establishment of the Payment
Account;
(B) the receipt of the Junior Subordinated
Debentures;
(C) the receipt and collection of interest,
principal and any other payments made in respect of
the Junior Subordinated Debentures in the Payment
Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities
in accordance with the terms of this Trust
Agreement;
(E) the exercise of all of the rights,
powers and privileges of a holder of the Junior
Subordinated Debentures;
(F) the sending of notices of default and
other information regarding the Trust Securities and
the Junior Subordinated Debentures to the
Securityholders in accordance with this Trust
Agreement;
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(G) the distribution of the Trust Property
in accordance with the terms of this Trust
Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust;
(I) after an Event of Default (other than
under paragraph (b), (c), (d) or (e) of the
definition of such term if the Event of Default is
by or with respect to the Property Trustee) the
taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine
is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect
of any such action on any particular
Securityholder);
(J) so long as the Property Trustee is the
Securities Registrar, registering transfers of the
Trust Securities in accordance with this Trust
Agreement; and
(K) except as otherwise provided in this
Section 2.07(a)(ii), the Property Trustee shall have
none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth
in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, the Trustees
shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would
cause the Trust to fail or cease to qualify as a "grantor trust" for
United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt or (v) take or consent to
any action that would result in the placement of a Lien on any of the
Trust Property. The Administrative Trustees 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 Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust,
the following (and any actions taken by the Depositor in furtherance
of the following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a
registration statement on the appropriate form
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in relation to the Preferred Securities and the Junior
Subordinated Debentures, including any amendments thereto;
(ii) the determination of the states in which to
take appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and all
such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they
must take on behalf of the Trust, and prepare for execution
and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable
laws of any such states;
(iii) in the discretion of the Depositor, the
preparation for filing by the Trust and execution on behalf
of the Trust of an application to the NASDAQ National Market
or a national stock exchange or other organizations for
listing upon notice of issuance of any Preferred Securities
and to file or cause an Administrative Trustee to file
thereafter with such exchange or organization such
notifications and documents as may be necessary from time to
time;
(iv) if required, the preparation for filing by the
Trust with the Commission and the execution on behalf of the
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, including any amendments
thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Underwriting Agreement
providing for the sale of the Preferred Securities;
(vi) the negotiation of the terms of, and execution
of, the Original Trust Agreement, and the preparation of this
Trust Agreement and the selection of the Trustees; and
(vii) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will
not be deemed to be an "investment company" required to be registered
under the Investment Company Act, will be classified as a "grantor
trust" and not as an association taxable as a corporation for 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, subject to
Section 10.02, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law or
this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary
or desirable for such purposes. In no event shall the Trustees be
liable to the Trust or the Securityholders for any failure to comply
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with this Section that results from a change in law or regulations or
in the interpretation thereof.
2.08 ASSETS OF TRUST. The assets of the Trust shall consist of the
Trust Property.
2.09 TITLE TO TRUST PROPERTY. Legal title to all Trust Property shall
be vested at all times in the Property Trustee (in its capacity as such) and
shall be held and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
3.01 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any
agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the
purpose of making deposits 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 Securityholders 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.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
4.01 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall
accumulate from _________________, 1999, and, except during any
Extension Period with respect to the Junior Subordinated Debentures,
shall be payable quarterly in arrears on the 15th day of March, June,
September and December in each year, commencing December 15, 1999. The
amount of each Distribution due with respect to the Trust Securities
will include amounts accrued through the date the Distribution payment
is due. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made
on the immediately preceding Business Day, in each case
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with the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with this Section
4.01(a) a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and, as a practical matter, the
Distributions on the Trust Securities shall be payable at a rate of
____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full period shall be computed
on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months.
During any Extension Period with respect to the Junior Subordinated
Debentures, Distributions on the Preferred Securities will be deferred
for a period equal to the Extension Period. The amount of
Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made by
the Property Trustee solely from the Payment Account and shall be
payable on each Distribution Date only to the extent that the Trust
has funds then on hand and immediately available in the Payment
Account for the payment of such Distributions.
(d) 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 on the
relevant record date, which shall be one Business Day prior to such
Distribution Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the 1st day of the month in which the
relevant Distribution Date occurs.
4.02 REDEMPTION.
(a) On each Debenture Redemption Date and on the Maturity
Date of the Junior Subordinated Debentures, the Trust will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 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 Securities Register. The Property Trustee shall have no
responsibility for the accuracy of any CUSIP number contained in such
notice. 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
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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;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the
aggregate Liquidation Amount of the particular Trust
Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accumulate on and after said date, except as provided in
Section 4.02(d) below; and
(vi) the place or places where Trust Securities are
to be surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of 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 Trust has immediately available 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 10:00 a.m., Delaware
time, on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in
book-entry-only form, deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption
Price and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof. If the
Preferred Securities are no longer in book-entry-only form, the
Property Trustee, subject to Section 4.02(c), will deposit with the
Paying Agent 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 thereof 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 Securityholders holding Trust Securities so
called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest
on such Redemption Price, and such Securities will cease to be
Outstanding. In the event that any date on which any Redemption Price
is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next
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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 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 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 Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accumulate, at
the then applicable rate, from the Redemption Date originally
established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption
Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record
date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date,
then the aggregate Liquidation Amount of Trust Securities to be
redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities. 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, by such method (including, without limitation, by lot) as
the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $8.00
or an integral multiple of $8.00 in excess thereof) of the Liquidation
Amount of Preferred Securities of a denomination larger than $8.00.
The Property Trustee shall promptly notify the Securities Registrar in
writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption,
the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
4.03 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust Securities,
as applicable, shall be made, subject to Section 4.02(f), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if
on any Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or Redemption Price of, any Common
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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, 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 Additional Amounts, if
applicable) on, or the Redemption Price 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 a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any right to act with respect
to any such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the Preferred
Securities shall have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities shall 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 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.
4.04 PAYMENT PROCEDURES. Payments of Distributions (including
Additional Amounts, if applicable) in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable Distribution Dates. 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.
4.05 TAX RETURNS AND REPORTS. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be furnished to such
Securityholder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders under the Trust Securities.
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4.06 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. Upon receipt under
the Junior Subordinated Debentures of Additional Sums, the Property Trustee, at
the direction of an Administrative Trustee or the Depositor, shall promptly pay
any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
4.07 PAYMENTS UNDER INDENTURE. Any amount payable hereunder to any
Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received under the Indenture
pursuant to Section 5.14(b) or (c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
5.01 INITIAL OWNERSHIP. Upon the creation of the Trust and the
contribution by the Depositor pursuant to Section 2.03 and until the issuance
of the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
5.02 THE TRUST SECURITIES CERTIFICATES. The Preferred Securities
Certificates shall be issued in minimum denominations of $8.00 Liquidation
Amount and integral multiples of $8.00 in excess thereof, and the Common
Securities Certificates shall be issued in denominations of $8.00 Liquidation
Amount and integral multiples of $8.00 in excess thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the 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
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.04,
5.11 and 5.13.
5.03 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES. On the
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust by at least one of the
Administrative Trustees and delivered, without further corporate action by the
Depositor, in authorized denominations.
5.04 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES. The Property Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.08, a register or registers
for the purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (herein referred to as the
"Securities Register") in which the registrar designated by the Property
Trustee (the "Securities Registrar"), subject to such reasonable regulations as
it may prescribe, shall provide for
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the registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Property Trustee shall be the
initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called for redemption.
At the option of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Property Trustee and the
Securities Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Property Trustee in accordance with its customary practice.
The Trust shall not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at the opening of
business 15 calendar days before the date of mailing of a notice of redemption
of any Preferred Securities called for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or
exchange any Preferred Securities so selected for redemption, in whole or in
part, except the unredeemed portion of any such Preferred Securities being
redeemed in part.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
5.05 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate,
a new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
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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 Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
5.06 PERSONS DEEMED SECURITYHOLDERS. The Trustees, the Paying Agent
and the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
5.07 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES. At any
time when the Property Trustee is not also acting as the Securities Registrar,
the Administrative Trustees or the Depositor shall furnish or cause to be
furnished to the Property Trustee (a) semi-annually on or before January 15 and
July 15 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent regular record date (as provided in Section 4.01(d)) and (b)
promptly after receipt by any Administrative Trustee or the Depositor of a
request therefor from the Property Trustee, such other information as the
Property Trustee may reasonably require in order to enable the Property Trustee
to discharge its obligations under this Trust Agreement, in each case to the
extent such information is in the possession or control of the Administrative
Trustees or the Depositor and is not identical to a previously supplied list or
has not otherwise been received by the Property Trustee in its capacity as
Securities Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or
under the Trust Securities, and the corresponding rights of the Trustee shall
be as provided in the Trust Indenture Act. Each Holder, by receiving and
holding a Trust Securities Certificate, and each Owner shall be deemed to have
agreed not to hold the Depositor, the Property Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
5.08 MAINTENANCE OF OFFICE OR AGENCY. The Administrative Trustees
shall maintain 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 Trustees in respect of
the Trust Securities Certificates may be served. The Administrative Trustees
initially designate the principal corporate trust office of the Property
Trustee, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, as the principal corporate trust office for
such purposes. The Administrative Trustees shall give prompt written notice to
the Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
5.09 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds
from the Payment Account for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove
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the Paying Agent if such Trustees determine in their sole discretion that the
Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall initially be the
Property Trustee, and any co-paying agent chosen by the Property Trustee, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. 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 Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the 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 Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. 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 8.01, 8.03 and 8.06 shall
apply to the Property Trustee also in its role as Paying Agent, for so long as
the Property Trustee shall act as Paying Agent and, to the extent applicable,
to any other Paying Agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the Closing Date,
the Depositor shall acquire and retain beneficial and record ownership of the
Common Securities. To the fullest extent permitted by law, any attempted
transfer of the Common Securities (other than a transfer in connection with a
merger or consolidation of the Depositor into another corporation pursuant to
Section 12.01 of the Indenture) shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES
CERTIFICATE.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to or held on
behalf of The Depository Trust Company, the initial Clearing Agency,
by, or on behalf of, the Trust. Such Book-Entry Preferred Securities
Certificate or Certificates shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no beneficial owner will receive a
Definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as
provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to beneficial owners pursuant
to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
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(ii) the Securities Registrar, the Paying Agent and
the Trustees shall be entitled to deal with the Clearing
Agency for all purposes of this Trust Agreement relating to
the Book-Entry Preferred Securities Certificates (including
the payment of the Liquidation Amount of and Distributions on
the Book-Entry Preferred Securities) as the sole Holder of
Book-Entry Preferred Securities and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control;
and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and will receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
Any Clearing Agency designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
5.12 NOTICES TO CLEARING AGENCY. To the extent that a notice or other
communication to the Owners is required under this Trust Agreement, unless and
until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
5.13 DEFINITIVE PREFERRED SECURITIES CERTIFICATES. If (a) the
Depositor advises the Trustees in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities with respect to the
Preferred Securities Certificates, and the Depositor is unable to locate a
qualified successor, (b) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, or (c) after the occurrence of a Debenture Event of Default, Owners of
Preferred Securities Certificates representing beneficial interests aggregating
at least a majority of the Liquidation Amount advise the Property Trustee in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Owners of Preferred Securities
Certificates, then the Property Trustee shall notify the Clearing Agency, and
the Clearing Agency shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the availability of
the Definitive Preferred Securities Certificates to Owners of such class or
classes, as applicable, requesting the same. Upon surrender to the Property
Trustee of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred
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Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates
as Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
5.14 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as
described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or
similar rights. When issued and delivered to Holders of the Preferred
Securities against payment of the purchase price therefor, the
Preferred Securities will be fully paid and nonassessable interests in
the Trust. The Holders of the Preferred 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 the right to make such declaration by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration
such principal amount of and the accrued interest on all of the Junior
Subordinated Debentures shall become immediately due and payable,
provided that the payment of principal and interest on such Junior
Subordinated Debentures shall remain subordinated to the extent
provided in the Indenture. If, as a result of a Debenture Event of
Default, the Debenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Junior Subordinated
Debentures have declared the Junior Subordinated Debentures due and
payable and if such default has been cured and a sum sufficient to pay
all matured installments due (otherwise than by acceleration) under
the Junior Subordinated Debentures has been deposited with the
Debenture Trustee, then (if the holders of not less than a majority in
aggregate outstanding principal amount of Junior Subordinated
Debentures have not annulled
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such declaration and waived such default) the Holders of a majority in
aggregate Liquidation Amount of the Preferred Securities may annul
such declaration and waive such default.
(c) For so long as any Preferred Securities remain
outstanding, upon a Debenture Event of Default arising from the
failure to pay interest or principal on the Junior Subordinated
Debentures, the Holders of any Preferred Securities then Outstanding
shall, to the fullest extent permitted by law, have the right to
institute directly proceedings for enforcement of payment to such
Holders of principal of or interest on the Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount
of the Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.01 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Sections 5.14,
8.10 and 10.02 and in the Indenture and as otherwise required by law,
no Holder of Preferred Securities shall have any right to vote or in
any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or executing any trust or power conferred on
the Debenture Trustee with respect to such Junior Subordinated
Debentures, (ii) waive any past default which is waivable under
Article Seven 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 all Outstanding Preferred
Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of outstanding
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 Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of
the Outstanding Preferred Securities, except by a subsequent vote of
the Holders of the Outstanding Preferred Securities. The Property
Trustee shall notify each Holder of the Outstanding Preferred
Securities of any notice of default received from the Debenture
Trustee 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 Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the
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Trust will continue to be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income
tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences
or special rights of the Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at least a
majority in Liquidation Amount of the Outstanding Preferred
Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would cease to be classified as a
grantor trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
6.02 NOTICE OF MEETINGS. Notice of all meetings of the Holders of
Preferred Securities, stating the time, place and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.08 to each Holder of
Preferred Securities of record, at such Securityholder's registered address, at
least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held
as adjourned without further notice.
6.03 MEETINGS OF HOLDERS OF PREFERRED SECURITIES. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Holders of 25% of the Outstanding Preferred Securities (based
upon their aggregate Liquidation Amount) and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of
Holders of the Preferred Securities to vote on any matters as to which the
Holders of the Preferred Securities are entitled to vote. Holders of record of
50% of the Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount), present in person or by proxy, shall constitute a quorum
at any meeting of such Securityholders. If a quorum is present at a meeting, an
affirmative vote by the Holders of record present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Holders of Preferred Securities of
record present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of the Preferred Securities, unless this Trust
Agreement requires a greater number of affirmative votes.
6.04 VOTING RIGHTS. Securityholders shall be entitled to one vote for
each $8.00 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
6.05 PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
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Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. 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 Securityholder 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.
6.06 SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action which may be
taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust
Securities (based upon their aggregate Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action
in writing (based upon their aggregate Liquidation Amount).
6.07 RECORD DATE FOR VOTING AND OTHER PURPOSES. For the purposes of
determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any distribution on the
Trust Securities in respect of which a record date is not otherwise provided
for in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Securityholders or the payment of any
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
6.08 ACTS OF SECURITYHOLDERS. 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 Securityholders or Owners
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders or Owners 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 an Administrative Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 8.01) conclusive in favor of the Trustees, if
made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any Trustee
receiving the same deems sufficient. The
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ownership of Preferred Securities shall be proved by the Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver or other
Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security. Without limiting the
foregoing, a Securityholder 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. A Holder of Preferred
Securities may institute a legal proceeding directly against the Depositor
under the Guarantee to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person.
6.09 INSPECTION OF RECORDS. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY AND THE
PROPERTY TRUSTEE. The Trust Company, in its separate corporate capacity and as
Property Trustee, as of the date hereof, and each successor Property Trustee at
the time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (the term "Trust Company" being used hereafter in
this Article VII to refer to such successor Property Trustee in its separate
corporate capacity and as Property Trustee), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Trust Company is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Trust Company has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Trust Company and constitutes the valid and
legally binding agreement of the Trust Company enforceable against it
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
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(d) the execution, delivery and performance by the Trust
Company of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Trust Company
and does not require any approval of the stockholders of the Trust
Company and such execution, delivery and performance will not (i)
violate the Trust Company's charter or by-laws, (ii) violate any
provision of, or constitute, with or without notice or lapse of time,
a default under, or result in the creation or imposition of, any Lien
on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which the Trust Company is a party or
by which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware as the case
may be, governing the banking or trust powers of the Trust Company, or
any order, judgment or decree applicable to the Trust Company;
(e) neither the authorization, execution or delivery by the
Trust Company of this Trust Agreement nor the consummation of any of
the transactions by the Trust Company contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to,
any governmental authority or agency under any existing law of the
United States or the State of Delaware governing the banking or trust
powers of the Trust Company; and
(f) there are no proceedings pending or, to the best of the
Trust Company's knowledge, threatened against or affecting the Trust
Company in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Trust Company to enter into or
perform its obligations as one of the Trustees under this Trust
Agreement.
7.02 REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY AND THE
DELAWARE TRUSTEE. The Trust Company in its corporate capacity and as Delaware
Trustee, as of the date hereof, and each successor Delaware Trustee at the time
of the successor Delaware Trustee's acceptance of its appointment as Delaware
Trustee hereunder (the term "Trust Company" being used hereafter in this
Article VIII to refer to such successor Delaware Trustee in its separate
corporate capacity and as Delaware Trustee), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Trust Company is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Trust Company has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Trust Company and constitutes the valid and
legally binding agreement of the Trust
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Company enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Trust
Company of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Trust Company
and does not require any approval of the stockholders of the Trust
Company and such execution, delivery and performance will not (i)
violate the Trust Company's charter or by-laws, (ii) violate any
provision of, or constitute, with or without notice or lapse of time,
a default under, or result in the creation or imposition of, any Lien
on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or
other agreement or instrument to which the Trust Company is a party or
by which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case
may be, governing the banking or trust powers of the Trust Company, or
any order, judgment or decree applicable to the Trust Company;
(e) neither the authorization, execution or delivery by the
Trust Company of this Trust Agreement nor the consummation of any of
the transactions by the Trust Company contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to,
any governmental authority or agency under any existing law of the
State of Delaware governing the banking or trust powers of the Trust
Company; and
(f) there are no proceedings pending or, to the best of the
Trust Company's knowledge, threatened against or affecting the Trust
Company in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Trust Company to enter into or
perform its obligations as one of the Trustees under this Trust
Agreement.
7.03 REPRESENTATION AND WARRANTIES OF DEPOSITOR. The Depositor hereby
represents and warrants for the benefit of the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the
Administrative Trustees pursuant to the terms and provisions of, and
in accordance with the requirements of, this Trust Agreement and the
Securityholders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under
the laws of the State of Delaware or any political subdivision thereof
in connection with the execution, delivery and performance by the
Trust Company, the Property Trustee, the Trust Company or the Delaware
Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII
THE TRUSTEES
8.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees 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 Trustees 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. No Administrative Trustee nor the Delaware Trustee shall be liable
for such Trustee's acts or omissions hereunder except as a result of
such Trustee's own gross negligence or willful misconduct. The
Property Trustee's liability shall be determined under the Trust
Indenture Act. 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 Trustees shall be
subject to the provisions of this Section. To the extent that, at law
or in equity, the Delaware Trustee or an Administrative Trustee has
duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to the Securityholders, the Delaware Trustee or such
Administrative Trustee shall not be liable to the Trust or to any
Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities
of the Delaware Trustee or the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Delaware Trustee and the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make
payments in accordance with the terms hereof. Each Securityholder, by
such Securityholder's acceptance of a Trust Security, agrees that such
Securityholder will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to
such Securityholder as herein provided and that the Trustees are not
personally liable to such Securityholder for any amount distributable
in respect of any Trust Security or for any other liability in respect
of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) 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:
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(i) 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;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
not less than a majority in Liquidation Amount of the Trust
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of the
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;
(iv) 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 3.01 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative Trustees
or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable for
the negligence, default or misconduct of the Administrative
Trustees or the Depositor.
8.02 CERTAIN NOTICES.
(a) Within five Business Days after the Property Trustee
learns of occurrence of any Event of Default, the Property Trustee
shall transmit, in the manner and to the extent provided in Section
10.08, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of
Default shall have been cured or waived prior to the sending of such
notice. For purposes of this Section the term "Event of Default" means
any event that is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in Section
10.08, notice of the Depositor's election to begin or further extend
an Extension Period on the Junior Subordinated Debentures (unless such
election shall have been revoked) within the time specified for
transmitting such notice to the holders of the Junior Subordinated
Debentures pursuant to the Indenture as originally executed.
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(c) In the event the Depositor elects to accelerate the
Maturity Date in accordance with Section 2.02 of the Indenture, the
Property Trustee shall give notice to each Holder of Trust Securities
of the acceleration of the Maturity Date and the Accelerated Maturity
Date not later than five Business Days after the Property Trustee
receives the notice provided in Section 2.02(c) of the Indenture.
8.03 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the provisions of
Section 8.01:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the
provisions of this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to
which the Holders of the Preferred Securities are entitled to vote
under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of
the Depositor as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to
refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor
within 10 Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate which,
upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
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(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or re-registration
thereof;
(f) the Property Trustee may consult with counsel of its
choice 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 (such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its
employees); the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee such reasonable security or
indemnity as the Property Trustee may request against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Securityholders, but the Property Trustee may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request instructions
from the Holders of the Trust Securities which instructions may only
be given by the Holders of the same proportion in Liquidation Amount
of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are
received, and (iii) shall be protected in acting in accordance with
such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement. No provision of this Trust Agreement shall be deemed
to impose any duty or obligation on the Property Trustee to perform
any act or acts or
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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 the Property Trustee shall be construed to be a
duty.
8.04 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 Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees (as such) shall not be
accountable for the use or application by the Depositor of the proceeds of the
Junior Subordinated Debentures.
8.05 MAY HOLD SECURITIES. Any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13 and
except as provided in the definition of the term "Outstanding" in Article I,
may otherwise deal with the Trust with the same rights it would have if it were
not a Trustee or such other agent.
8.06 COMPENSATION; INDEMNITY; FEES. The Depositor agrees:
(a) to pay to the 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) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (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 such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or
the Delaware Trustee, any such expense, disbursement or advance as may
be attributable to its, his or her gross negligence, bad faith or
willful misconduct); and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustees and any predecessor
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust, (referred to as
an "Indemnified Person") from and against, any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person arising out of or in
connection with the creation, operation or dissolution of the Trust or
any act or omission performed or omitted by 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 gross negligence, bad faith or willful misconduct with
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respect to such acts or omissions (or, in the case of the Property
Trustee, by reason of negligence, bad faith or willful misconduct with
respect to such acts or omissions).
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
The Depositor and any Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of the 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 Trust, shall not be deemed wrongful or improper. Neither the
Depositor nor any Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor or any Trustee shall have the right to take for its own account
(individually or as a partner of fiduciary) or to recommend to others any such
particular investment or other opportunity. Any 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.
No Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section 8.06.
8.07 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50 million.
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.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through one or
more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity with its principal place
of
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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.
8.08 CONFLICTING INTERESTS. 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.
8.09 CO-TRUSTEES AND SEPARATE TRUSTEE. 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 Depositor and the Administrative Trustees shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor
and the Administrative Trustees shall for such purpose join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, 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. If the Depositor and the Administrative Trustees do not join in such
appointment within 15 days after the receipt by them of a request so to do, or
in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section shall either
be (i) a natural person who is at least 21 years of age and a resident of the
United States or (ii) a legal entity with its principal place of business in
the United States that shall act through one or more persons authorized to bind
such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed 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 Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the
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instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, 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 8.09.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No resignation
or removal of any Trustee (the "Relevant Trustee") and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Holder of the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to such Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Holder of the Common
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Securities at any time. In no event will the Holders of the Preferred
Securities have the right to vote to appoint, remove or replace the
Administrative Trustees.
If the Relevant Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office of such
Relevant Trustee for any cause, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by
Act of the Holder of the Common Securities delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Trustee or Trustees with respect to
the Trust Securities and the Trust, and the successor Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and is continuing,
the Holders of the Preferred Securities by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities then Outstanding delivered to
the retiring Relevant Trustee, shall promptly appoint a successor Trustee or
Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Holder
of the Common Securities, by Act of the Holder of the Common Securities
delivered to an Administrative Trustee, shall promptly appoint a successor
Administrative Trustee or Administrative Trustees, and such successor
Administrative Trustee or Administrative Trustees shall comply with the
applicable requirements of Section 8.11. If no successor Trustee with respect
to the Trust Securities shall have been so appointed by the Holder of the
Common Securities or the Holders of the Preferred Securities, as the case may
be, and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six months may, on
behalf of such Securityholder and all others similarly situated, petition a
court of competent jurisdiction for the appointment of a successor Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Relevant Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.08 and shall give
notice to the Depositor. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust office if it is the Property
Trustee.
Subject to the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or the Delaware Trustee, as the case may be, set
forth in Section 8.07).
8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Trustee, the retiring Relevant Trustee and
each successor Trustee shall execute and deliver an instrument wherein each
successor 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 Trustee all the rights, powers, trusts and duties of
the
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retiring Relevant Trustee with respect to the Trust Securities and the 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 Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities
and the Trust; but, on request of the Trust or any successor Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Trustee all Trust Property, all proceeds thereof and money held by
such retiring Relevant Trustee hereunder with respect to the Trust Securities
and the Trust. Upon request of any such successor Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the immediately preceding paragraph, as the case may be. 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.
8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
Person into which a Trustee that is not a natural person 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 corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST. If
and when the Property Trustee shall be or become a creditor of the Depositor or
the Trust (or any other obligor upon the Junior Subordinated Debentures or the
Trust Securities), the Property Trustee shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Depositor or Trust (or any
such other obligor).
8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 31 of each year commencing with July
31, 2000, the Property Trustee shall transmit to all Securityholders
in accordance with Section 10.08, and to the Depositor, a brief report
dated as of the preceding December 31 with respect to:
(i) its eligibility under Section 8.07 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.
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(b) In addition the Property Trustee shall transmit to
Securityholders 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.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national securities exchange or other organization upon which the
Trust Securities may be listed, with the Commission and with the
Depositor.
8.15 REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with the conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the
Holder of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with
Section 8.10, the Administrative Trustees in office, regardless of
their number (and notwithstanding any other provision of this
Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
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8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.07(a)(i); and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary
to the provisions of the Trust, as set forth herein.
8.19 VOTING. Except as otherwise provided in this Trust Agreement, the
consent or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees, unless
there are only two, in which case both must consent.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
9.01 DISSOLUTION UPON EXPIRATION DATE. Unless earlier dissolved, the
Trust shall automatically dissolve on _______________, 2034 (the "Expiration
Date"), and thereafter the Trust Property shall be distributed in accordance
with Section 9.04.
9.02 EARLY DISSOLUTION. The first to occur of any of the following
events is an "Early Termination Event," upon the occurrence of which the Trust
shall dissolve:
(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is wholly optional and
within the discretion of the Depositor) to dissolve the Trust and
distribute the Junior Subordinated Debentures to Securityholders in
exchange for the Preferred Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Junior Subordinated
Debentures; and
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
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<PAGE> 48
9.03 TERMINATION. The respective obligations and responsibilities of
the Trustees and the Trust created and continued hereby shall terminate upon
the latest to occur of the following:
(a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant
to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities;
(b) the payment of any expenses owed by the Trust;
(c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust or the
Securityholders, and
(d) the filing of a certificate of cancellation by the
Administrative Trustee under the Delaware Business Trust Act.
9.04 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b), or (d) of Section 9.02 occurs or upon the Expiration Date, the
Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by distributing, after satisfaction
of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like Amount of Junior Subordinated
Debentures, subject to Section 9.04(d). Notice of liquidation shall be
given by the Property Trustee by first-class mail, postage prepaid,
mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All 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 9.04(d) applies receive a Liquidation Distribution,
as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order
to effect the liquidation of the Trust and distribution of the Junior
Subordinated Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more
than 45 days prior to the Liquidation Date) and, either itself acting
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<PAGE> 49
as exchange agent or through the 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 9.02(c) or 9.04(d) applies, after
the Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) certificates (or, at the election of
the Depositor a Global Subordinated Debenture, subject to the
provisions of the Indenture) representing a Like Amount of Junior
Subordinated Debentures will be issued to Holders of Trust Securities
Certificates upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (iii) the Depositor shall use
its reasonable efforts to have the Junior Subordinated Debentures
listed on the NASDAQ National Market or on such other securities
exchange or other organization as the Preferred Securities may then be
listed or traded, (iv) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Junior Subordinated Debentures, accruing interest at the rate provided
for in the Junior Subordinated Debentures from the last Distribution
Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates
with respect to such Junior Subordinated Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Junior Subordinated
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions
of this Section 9.04, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise,
distribution of the Junior Subordinated Debentures in the manner
provided herein is determined by the Property Trustee not to be
practical, the Trust shall be dissolved and the Trust Property 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 Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders,
after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on
a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, 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
with respect to any distributions.
9.05 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as
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<PAGE> 50
an entirety to any corporation or other Person, except pursuant to this Section
9.05. At the request of the Depositor, with the consent of the Administrative
Trustees and without the consent of the Holders of the Preferred Securities,
the Property Trustee or the Delaware Trustee, the Trust may merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided, that (i) such successor entity either
(a) expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) 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 rank the same as
the Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing substantially
the same powers and duties as the Property Trustee as the holder of the Junior
Subordinated Debentures, (iii) 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, (iv) such
successor entity has a purpose identical to that of the Trust, (v) the
Successor Securities will be listed or traded on any national securities
exchange or other organization on which the Preferred Securities may then be
listed, (vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
experienced in such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and
(b) 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 (vii) the Depositor 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.
Notwithstanding the foregoing, the 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 Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it, if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death or incapacity
of any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of 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.
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10.02 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Trustees and the Depositor, without the consent of any
Securityholders, (i) as provided in Section 8.11 with respect to
acceptance of appointment by a successor Trustee, (ii) to cure any
ambiguity, correct or supplement any provision herein or therein which
may be inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions arising
under this Trust Agreement, that shall not be inconsistent with the
other provisions of this Trust Agreement, or (iii) to modify,
eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be
classified for United States federal income tax purposes as a grantor
trust at all times that any Trust Securities are Outstanding or to
ensure that the Trust will not be required to register as an
"investment company" under the Investment Company Act; provided,
however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 6.01(c) or Section 10.02(c)
hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Securityholders
representing not less than a majority (based upon Liquidation Amounts)
of the Trust Securities then Outstanding and (ii) upon 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 status as a grantor trust
for United States federal income tax purposes or the 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
Securityholder (such consent being obtained in accordance with Section
6.03 or 6.06 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 Securityholder 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 the Securityholders (such consent being obtained
in accordance with Section 6.03 or 6.06 hereof), this paragraph (c) of
this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an "investment company" under
the Investment Company Act or to fail or cease to be classified as a
grantor trust for United States federal income tax purposes.
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(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation
on the Depositor.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees 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.
10.03 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.
10.04 GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES).
10.05 PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed for any
payment on any Trust Security shall be a day that is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided in
Sections 4.01(a) and 4.02(d)), with the same force and effect as though made on
the date fixed for such payment, and no Distribution shall accumulate thereon
for the period after such date.
10.06 SUCCESSORS. This Trust Agreement shall be binding upon and shall
inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee(s), including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Twelve 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.
10.07 HEADINGS. The Article and Section headings are for convenience
only and shall not affect the construction of this Trust Agreement.
10.08 REPORTS, NOTICES AND DEMANDS. Any report, 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 any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such
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<PAGE> 53
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities
or the Depositor, to Enterbank Holdings, Inc. 150 North Meramec, Clayton,
Missouri 63105, Attention: Chief Executive Officer; Facsimile No.: (314)
727-3239. Any notice to the Holders of the Preferred Securities shall also be
given to such Owners as have, within two years preceding the giving of such
notice, filed their names and addresses with the Property Trustee for that
purpose. Such notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission.
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 Trust, the Property Trustee or the Administrative Trustees shall be given
in writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration; (b) with
respect to the Delaware Trustee, to 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration; and (c) with respect
to the Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of EBH Capital Trust I."
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Trust or the Property Trustee.
10.09 AGREEMENT NOT TO PETITION. Each of the Trustees and the
Depositor agree for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, 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 Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor (which expense shall be paid prior to the filing), it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom. The provisions
of this Section 10.09 shall survive the termination of this Trust Agreement.
10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
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(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture
Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Trust Agreement as so modified or to be
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as
equity securities representing undivided beneficial interests in the
assets of the Trust.
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 SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
10.12 COUNTERPARTS. This Trust Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, and all of which counterparts together shall constitute one and the
same agreement.
ENTERBANK HOLDINGS, INC.,
as Depositor
By:
--------------------------
Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
--------------------------
Name:
------------------------
Title:
-----------------------
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WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------------------------
James C. Wagner, as Administrative Trustee
--------------------------------------------
Jennifer S. Smith, as Administrative Trustee
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EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER NUMBER OF SECURITIES
------------- ------------
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
EBH CAPITAL TRUST I
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $8.00 PER COMMON SECURITY)
EBH CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Enterbank
Holdings, Inc. (the "Holder") is the registered owner of
_______________________________________________ (________________) securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the ____% Common Securities (liquidation amount $8.00 per
Common Security) (the "Common Securities"). In accordance with Section 5.10 of
the Trust Agreement (as defined below), the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences, and other terms and provisions
of the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _________________, 1999, as the same may be amended from time
to time (the "Trust Agreement"), including the designation of the terms of
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office. Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ____ day of ______________, 1999.
EBH CAPITAL TRUST I
By:
------------------------------
Administrative Trustee
C-1
<PAGE> 57
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______________, 1999, between ENTERBANK
HOLDINGS, INC., a Delaware corporation (the "Company"), and EBH CAPITAL TRUST
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to, and receive ____% Junior Subordinated Debentures due 2029 (the
"Junior Subordinated Debentures") from, the Company and to issue and sell ____%
Cumulative Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of _______________, 1999, as
the same may be amended from time to time (the "Trust Agreement"); and
WHEREAS, the Company will directly or indirectly own all of the Common
Securities of the Trust and will issue the Junior Subordinated Debentures.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit
the Company and which purchase the Company acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Company,
including in its capacity as holder of the Common Securities, and the Trust
hereby agree as follows:
ARTICLE I
SECTION 1.01 . GUARANTEE BY THE COMPANY. Subject to the terms and
conditions hereof, the Company, including in its capacity as holder of the
Common Securities, hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust other than
obligations of the Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the case
may be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.02 . TERM OF AGREEMENT. This Agreement shall terminate and
be of no further force and effect upon the later of (a) the date on which full
payment has been made of all amounts payable to all holders of all the
Preferred Securities (whether upon redemption, liquidation, exchange or
otherwise) and (b) the date on which there are no Beneficiaries remaining;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Preferred Securities
Guarantee Agreement dated the date hereof by the Company and Property Trustee
as Guarantee
D-1
<PAGE> 58
Trustee or under this Agreement, for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
SECTION 1.03 . WAIVER OF NOTICE. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.04 . NO IMPAIRMENT. The obligations, covenants, agreements
and duties of the Company under this 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 extension of time for the payment by the Trust of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) 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 Trust or any of the assets of the Trust. The
Beneficiaries shall not be obligated to give notice to, or obtain the
consent of, the Company with respect to the happening of any of the
foregoing.
SECTION 1.05 . ENFORCEMENT. A Beneficiary may enforce this Agreement
directly against the Company, and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
SECTION 2.01 . BINDING EFFECT. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
SECTION 2.02 . AMENDMENT. So long as there remains any Beneficiary or
any Preferred Securities are outstanding, this Agreement shall not be modified
or amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
SECTION 2.03 . NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same by facsimile
D-2
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transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer back, if sent by telex):
EBH CAPITAL TRUST I
150 North Meramec
Clayton, Missouri 63105
Facsimile No.: (314) 727-5759
Attention: Administrative Trustees
ENTERBANK HOLDINGS, INC.
150 North Meramec
Clayton, Missouri 63105
Facsimile No.: (314) 727-5759
Attention: Chief Financial Officer
SECTION 2.04 . GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Missouri
(without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
ENTERBANK HOLDINGS, INC.
By:
--------------------------
Chief Executive Officer
EBH CAPITAL TRUST I
By:
--------------------------
Administrative Trustee
D-3
<PAGE> 60
EXHIBIT E
This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement (as defined below) and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security 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) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of the Depositary to EBH Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred Security
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of the Depositary (and any payment hereon is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. has an interest herein.
E-1
<PAGE> 61
Certificate Number Number of Preferred Securities
**1** ------------
CUSIP NO. ____
-------------------
Certificate Evidencing Preferred Securities
of
EBH Capital Trust I
____% Cumulative Preferred Securities
(liquidation amount $8.00 per Preferred Security)
EBH Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of _______________________ (____) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the ____% Cumulative Preferred Securities
(liquidation amount $8.00 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in
Section 5.04 of the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences, and other terms and provisions
of the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of _________________, 1999, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Preferred Securities Guarantee Agreement entered into by
Enterbank Holdings, Inc., a Delaware corporation, and Wilmington Trust Company,
as guarantee trustee, dated as of _________________, 1999 (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request
to the Trust at its principal place of business or registered office. Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and is
entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of __________________, 1999.
EBH CAPITAL TRUST I
By:
-------------------------------------------
James C. Wagner, Administrative Trustee
By:
-------------------------------------------
Jennifer S. Smith, Administrative Trustee
E-1
<PAGE> 1
EXHIBIT 4.6
------------------------------------------------------
SUBORDINATED INDENTURE
ENTERBANK HOLDINGS, INC.,
AS ISSUER
TO
WILMINGTON TRUST COMPANY,
AS TRUSTEE
___% JUNIOR SUBORDINATED DEBENTURES
DATED AS OF ______________, 1999
------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I - DEFINITIONS.......................................................1
1.01 DEFINITIONS.................................................1
ARTICLE II - DESCRIPTION, TERMS, CONDITIONS, REGISTRATION
AND EXCHANGE OF THE JUNIOR SUBORDINATED DEBENTURES...................9
2.01 DESIGNATION AND PRINCIPAL AMOUNT............................9
2.02 MATURITY....................................................9
2.03 FORM AND PAYMENT...........................................10
2.04 GLOBAL SUBORDINATED DEBENTURE..............................10
2.05 INTEREST...................................................12
2.06 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.............13
2.07 REGISTRATION AND TRANSFER..................................13
2.08 MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED
DEBENTURES.................................................14
ARTICLE III - REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES...................15
3.01 REDEMPTION.................................................15
3.02 SPECIAL EVENT REDEMPTION...................................15
3.03 OPTIONAL REDEMPTION BY COMPANY.............................16
3.04 NOTICE OF REDEMPTION.......................................16
3.05 PAYMENT UPON REDEMPTION....................................17
3.06 NO SINKING FUND............................................18
ARTICLE IV - EXTENSION OF INTEREST PAYMENT PERIOD............................18
4.01 EXTENSION OF INTEREST PAYMENT PERIOD.......................18
4.02 NOTICE OF EXTENSION........................................19
4.03 LIMITATION OF TRANSACTIONS DURING EXTENSION................19
ARTICLE V - PARTICULAR COVENANTS OF THE COMPANY..............................19
5.01 PAYMENT OF PRINCIPAL AND INTEREST..........................19
5.02 MAINTENANCE OF AGENCY......................................20
5.03 PAYING AGENTS..............................................20
5.04 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE...........21
5.05 COMPLIANCE WITH CONSOLIDATION PROVISIONS...................21
5.06 RESTRICTIONS ON CERTAIN PAYMENTS...........................21
5.07 COVENANTS AS TO THE TRUST..................................22
ARTICLE VI - SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE.............................................................22
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C>
6.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS............................................22
6.02 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS............................................23
6.03 REPORTS BY THE COMPANY.....................................23
6.04 REPORTS BY THE TRUSTEE.....................................24
ARTICLE VII - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT....................................................24
7.01 EVENTS OF DEFAULT..........................................24
7.02 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE....................................................26
7.03 APPLICATION OF MONEYS COLLECTED............................27
7.04 LIMITATION ON SUITS........................................28
7.05 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.....................................................29
7.06 CONTROL BY SECURITYHOLDERS.................................29
7.07 UNDERTAKING TO PAY COSTS...................................30
ARTICLE VIII - FORM OF JUNIOR SUBORDINATED DEBENTURE AND ORIGINAL ISSUE......30
8.01 FORM OF JUNIOR SUBORDINATED DEBENTURE......................30
8.02 ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES...........30
ARTICLE IX - CONCERNING THE TRUSTEE..........................................31
9.01 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.........31
9.02 CERTAIN RIGHTS OF TRUSTEE..................................32
9.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF THE
JUNIOR SUBORDINATED DEBENTURES.............................33
9.04 MAY HOLD JUNIOR SUBORDINATED DEBENTURES....................34
9.05 MONEYS HELD IN TRUST.......................................34
9.06 COMPENSATION AND REIMBURSEMENT.............................34
9.07 RELIANCE ON OFFICERS' CERTIFICATE..........................35
9.08 DISQUALIFICATION; CONFLICTING INTERESTS....................35
9.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY....................35
9.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..........35
9.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.....................37
9.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...................................................37
9.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY......37
9.14 APPOINTMENT OF AUTHENTICATING AGENT........................38
</TABLE>
iii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE X - CONCERNING THE SECURITYHOLDERS...................................39
10.01 EVIDENCE OF ACTION BY SECURITYHOLDERS......................39
10.02 PROOF OF EXECUTION BY SECURITYHOLDERS......................40
10.03 WHO MAY BE DEEMED OWNERS...................................40
10.04 CERTAIN JUNIOR SUBORDINATED DEBENTURES OWNED BY COMPANY
DISREGARDED................................................40
10.05 ACTIONS BINDING ON FUTURE SECURITYHOLDERS..................41
ARTICLE XI - SUPPLEMENTAL INDENTURES.........................................41
11.01 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
SECURITYHOLDERS............................................41
11.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS....42
11.03 EFFECT OF SUPPLEMENTAL INDENTURES..........................43
11.04 JUNIOR SUBORDINATED DEBENTURES AFFECTED BY SUPPLEMENTAL
INDENTURES.................................................43
11.05 EXECUTION OF SUPPLEMENTAL INDENTURES.......................43
ARTICLE XII - SUCCESSOR CORPORATION..........................................44
12.01 COMPANY MAY CONSOLIDATE, ETC...............................44
12.02 SUCCESSOR SUBSTITUTED......................................44
12.03 EVIDENCE OF CONSOLIDATION, ETC., TO TRUSTEE................44
ARTICLE XIII - SATISFACTION AND DISCHARGE....................................45
13.01 SATISFACTION AND DISCHARGE OF INDENTURE....................45
13.02 DISCHARGE OF OBLIGATIONS...................................45
13.03 DEPOSITED MONEYS TO BE HELD IN TRUST.......................45
13.04 PAYMENT OF MONEYS HELD BY PAYING AGENTS....................46
13.05 REPAYMENT TO COMPANY.......................................46
ARTICLE XIV - IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS....................................................46
14.01 NO RECOURSE................................................46
ARTICLE XV - MISCELLANEOUS PROVISIONS........................................47
15.01 EFFECT ON SUCCESSORS AND ASSIGNS...........................47
15.02 ACTIONS BY SUCCESSOR.......................................47
15.03 SURRENDER OF COMPANY POWERS................................47
15.04 NOTICES....................................................47
15.05 GOVERNING LAW..............................................47
15.06 TREATMENT OF JUNIOR SUBORDINATED DEBENTURES AS DEBT........47
15.07 COMPLIANCE CERTIFICATES AND OPINIONS.......................48
</TABLE>
iv
<PAGE> 5
<TABLE>
<S> <C>
15.08 PAYMENTS ON BUSINESS DAYS..................................48
15.09 CONFLICT WITH TRUST INDENTURE ACT..........................48
15.10 COUNTERPARTS...............................................48
15.11 SEPARABILITY...............................................48
15.12 ASSIGNMENT.................................................49
15.13 ACKNOWLEDGMENT OF RIGHTS...................................49
ARTICLE XVI - SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES................49
16.01 AGREEMENT TO SUBORDINATE...................................49
16.02 DEFAULT ON SENIOR AND SUBORDINATED DEBT....................49
16.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.......................50
16.04 SUBROGATION................................................51
16.05 TRUSTEE TO EFFECTUATE SUBORDINATION........................52
16.06 NOTICE BY THE COMPANY......................................52
16.07 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR AND SUBORDINATED
DEBT.......................................................53
16.08 SUBORDINATION MAY NOT BE IMPAIRED..........................53
EXHIBIT A...................................................................A-1
</TABLE>
v
<PAGE> 6
ENTERBANK HOLDINGS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND SUBORDINATED INDENTURE,
DATED AS OF ______________, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION SUBORDINATED INDENTURE SECTION
<S> <C>
Section 310 15.09
Section 310(b) 9.08
Section 311 15.09
Section 311(a) 9.13
(b) 9.13
Section 312 15.09
Section 312(b) 6.02
Section 313 15.09
Section 313(a) 6.04
(b) 6.04
(c) 6.04
Section 314 15.09
Section 315 15.09
Section 316 15.09
Section 317 15.09
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Subordinated Indenture.
vi
<PAGE> 7
SUBORDINATED INDENTURE
SUBORDINATED INDENTURE (the "Indenture"), dated as of ____________,
1999, between ENTERBANK HOLDINGS, INC., a Delaware corporation (the "Company")
and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Trustee");
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its securities to be known as its __% Junior Subordinated
Debentures due _____________, 2029 (hereinafter referred to as the "Junior
Subordinated Debentures"), the form and substance of such Junior Subordinated
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in this Indenture; and
WHEREAS, EBH Capital Trust I, a Delaware statutory business trust (the
"Trust"), has offered to the public $_____[A]_____ aggregate liquidation amount
of its ___% Cumulative Trust Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by the Trust to the Company of $____[B]____ aggregate
liquidation amount of its __% Common Securities, in $_[A]+[B]__ aggregate
principal amount of the Junior Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Indenture and all requirements necessary to make this Indenture a
valid instrument in accordance with its terms, and to make the Junior
Subordinated Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company; and
WHEREAS, to provide the terms and conditions upon which the Junior
Subordinated Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this Indenture; 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, in consideration of the premises and the purchase of
the Junior Subordinated Debentures by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
holders of Junior Subordinated Debentures:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
that are by reference in said Trust Indenture Act defined in the Securities Act
of 1933, as amended (except as herein otherwise
<PAGE> 8
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this Indenture.
"Accelerated Maturity Date" means, if the Company elects to accelerate
the Maturity Date in accordance with Section 2.02, the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after
____________, 2004.
"Additional Sums" shall have the meaning set forth in Section 2.05(c).
"Administrative Trustees" has the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f)
if the specified Person is an individual, any entity of which the specified
Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Junior Subordinated Debentures appointed by the Trustee pursuant to Section
9.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means any day other than a day on which federal or
state banking institutions in the State of Missouri or Delaware are authorized
or obligated by law, executive order or regulation to close or a day on which
the Trustee is closed.
"Capital Treatment Event" means the reasonable determination by the
Company that, as a result of any amendment to, or change (including any
proposed change) in, the laws (or any 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
2
<PAGE> 9
applying such laws or regulations, which amendment or change is effective or
such proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Trust Agreement, there
is more than an insubstantial risk of impairment of the Company's ability to
treat the Preferred Securities (or any substantial portion thereof) as Tier I
Capital for purposes of any then applicable capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Company.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
15.07.
"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 Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of the Trust which rank pari passu with Preferred Securities issued by the
Trust; provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means Enterbank Holdings, Inc., a corporation duly organized
and existing under the laws of the State of Delaware, and, subject to the
provisions of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section
4.01.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Coupon Rate" shall have the meaning set forth in Section 2.05(a).
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit,
3
<PAGE> 10
bankers' acceptances or similar facilities issued for the account of such
Person; (d) every obligation of such Person 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 such Person; and (f) every obligation of the type
referred to in clauses (a) through (e) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or for which such Person is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.01.
"Depositary" means, with respect to Junior Subordinated Debentures
issued as a Global Subordinated Debenture, The Depository Trust Company, New
York, New York, another clearing agency, or any successor registered as a
clearing agency under the Exchange Act, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.04.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Trust Agreement and the Junior Subordinated Debentures held by the
Property Trustee are to be distributed to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Trust Agreement.
"Distributions" shall have the meaning set forth in the Trust
Agreement.
"Event of Default" means any event specified in Section 7.01,
continued for the period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.01.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Subordinated Debenture" means a Junior Subordinated Debenture
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
4
<PAGE> 11
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"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 in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any installment of
interest on the Junior Subordinated Debentures, means the date specified in the
Junior Subordinated Debenture as the fixed date on which an installment of
interest with respect to the Junior Subordinated Debentures is due and payable.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means the receipt by the Company and the
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in Investment
Company Act Law"), the Trust is or will be considered an "investment company"
that is required to be registered under the Investment Company Act, which
Change in Investment Company Act Law becomes effective on or after the date of
original issuance of the Preferred Securities under the Trust Agreement.
"Junior Subordinated Debentures" means the __% Junior Subordinated
Debentures due 2029 authenticated and delivered under this Indenture.
"Liquidation Amount" means the stated amount of $8.00 per Trust
Security.
"Maturity Date" shall have the meaning set forth in Section 2.02.
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.04(a).
5
<PAGE> 12
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President and by the Chief
Accounting Officer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 15.07, if and to the extent
required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 15.07, if and to the extent required by the
provisions thereof.
"Outstanding," when used with reference to Junior Subordinated
Debentures means, subject to the provisions of Section 10.04, as of any
particular time, all Junior Subordinated Debentures theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Junior
Subordinated Debentures theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Junior Subordinated Debentures or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Junior Subordinated
Debentures or portions of such Junior Subordinated Debentures are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article III, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Junior Subordinated
Debentures in lieu of or in substitution for which other Junior Subordinated
Debentures shall have been authenticated and delivered pursuant to the terms of
Section 2.08.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Junior Subordinated Debenture" means every previous
Junior Subordinated Debenture evidencing all or a portion of the same debt as
that evidenced by such particular Junior Subordinated Debenture; and, for the
purposes of this definition, any Junior Subordinated Debenture authenticated
and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Junior
Subordinated Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Junior Subordinated Debenture.
"Preferred Securities" means undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued by the
Trust; provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
6
<PAGE> 13
"Preferred Securities Certificate" has the meaning set forth in the
Trust Agreement.
"Preferred Securities Guarantee" means any guarantee that the Company
may enter into with the Property Trustee or other Persons that operates
directly or indirectly for the benefit of holders of Preferred Securities of
the Trust.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" means the amount equal to 100% of the principal
amount of Junior Subordinated Debentures to be redeemed plus any accrued and
unpaid interest thereon to the date of the redemption of such Junior
Subordinated Debentures.
"Responsible Officer" when used with respect to the Trustee means any
Vice President or any corporate trust officer with direct responsibility for
the administration of this Indenture or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Scheduled Maturity Date" means ______________, 2029.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 2.07.
"Securityholder," "Holder," "Registered Holder," or other similar
term, means the Person or Persons in whose name or names particular Junior
Subordinated Debentures shall be registered in the Securities Register.
"Senior and Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of the Company, whether incurred on or prior to the date
of this Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the
Junior Subordinated Debentures or to other Debt which is pari passu with, or
subordinated to, the Junior Subordinated Debentures; provided, however, that
Senior and Subordinated Debt shall not be deemed to include (a) any Debt 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, (b) any Debt of the Company to any of its
Subsidiaries, (c) any Debt to any employee of the Company, (d) any Debt which
by its terms is subordinated to any trade accounts payable or accrued
liabilities arising in the ordinary course of business but only to the extent
that payments made to the holders of such Debt by the Holders of the Junior
Subordinated Debentures as a result of the subordination provisions of this
Indenture would
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be greater than they otherwise would have been as a result of any obligation of
such Holders to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the ordinary course of business as a result
of subordination provisions to which such Debt is subject, (e) the Preferred
Securities Guarantee, and (f) any other debt securities issued pursuant to this
Indenture.
"Special Event" means a Tax Event, an Investment Company Event or a
Capital Treatment Event.
"Subsidiary" means, with respect to any Person, (a) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (b) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries, and (c) any limited partnership of which such Person
or any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement 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 Junior Subordinated Debentures there is more than an insubstantial risk
that (a) interest payable by the Company on the Junior Subordinated Debentures
is not, or within 90 days after the date of such Opinion of Counsel will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes, (b) the Trust is, or will be within 90 days after the date
of such Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the Junior Subordinated Debentures, or
(c) the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges.
"Trust" means EBH Capital Trust I, a Delaware statutory business trust
created for the purpose of issuing Trust Securities in connection with the
issuance of Junior Subordinated Debentures under this Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of _______________, 1999, of the Trust.
"Trustee" means Wilmington Trust Company and, subject to the
provisions of Article IX, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred Securities of
the Trust.
"Voting Stock" as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
ARTICLE II
DESCRIPTION, TERMS, CONDITIONS, REGISTRATION
AND EXCHANGE OF THE JUNIOR SUBORDINATED DEBENTURES
2.01 DESIGNATION AND PRINCIPAL AMOUNT. There is hereby authorized a
series of Securities designated the "__% Junior Subordinated Debentures due
2029," limited in aggregate principal amount to $__________, which amount shall
be as set forth in any written order of the Company for the authentication and
delivery of Junior Subordinated Debentures pursuant to Section 8.02 of this
Indenture.
2.02 MATURITY.
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity
Date to be a date prior to the Scheduled Maturity Date in
accordance with Section 2.02(b), the Accelerated Maturity
Date.
(b) The Company may, at any time before the day which is 90
days before the Scheduled Maturity Date, elect to shorten the Maturity
Date only once to the Accelerated Maturity Date, provided that the
Company has received the prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the
Federal Reserve, but in no case shall such Accelerated Maturity Date
be a date before ____________, 2004.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.02(b), the Company shall give notice to the
Registered Holders of the Junior Subordinated Debentures, the Property
Trustee and the Trustee of the acceleration of the
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Maturity Date and the Accelerated Maturity Date at least 90 days
before the Accelerated Maturity Date.
2.03 FORM AND PAYMENT. Except as provided in Section 2.04, the Junior
Subordinated Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Junior Subordinated
Debentures issued in certificated form will be payable, the transfer of such
Junior Subordinated Debentures will be registrable and such Junior Subordinated
Debentures will be exchangeable for Junior Subordinated Debentures bearing
identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall appear in the
Securities Register. Notwithstanding the foregoing, so long as the Holder of
any Junior Subordinated Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional Sums,
if any) on such Junior Subordinated Debentures held by the Property Trustee
will be made at such place and to such account as may be designated by the
Property Trustee.
2.04 GLOBAL SUBORDINATED DEBENTURE.
(a) In connection with a Dissolution Event:
(i) the Junior Subordinated Debentures in
certificated form may be presented to the Trustee by the
Property Trustee in exchange for a Global Subordinated
Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Junior
Subordinated Debentures (a "Global Subordinated Debenture"),
to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the
instructions of the Administrative Trustees. The Company upon
any such presentation shall execute a Global Subordinated
Debenture in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in
accordance with this Indenture. Payments on the Junior
Subordinated Debentures issued as a Global Subordinated
Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Junior Subordinated
Debentures in certificated form may be presented to the
Trustee by the Property Trustee and any Preferred Securities
Certificate which represents Preferred Securities other than
Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Junior Subordinated
Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Non Book-Entry Preferred Securities
until such Preferred Securities Certificates are presented to
the Securities Registrar for transfer or reissuance at which
time such Preferred Securities Certificates will be canceled
and
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a Junior Subordinated Debenture, registered in the name of
the holder of the Preferred Securities Certificate or the
transferee of the holder of such Preferred Securities
Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate Liquidation Amount of the
Preferred Securities Certificate canceled, will be executed
by the Company and delivered to the Trustee for
authentication and delivery in accordance with this
Indenture. On issue of such Junior Subordinated Debentures,
Junior Subordinated Debentures with an equivalent aggregate
principal amount that were presented by the Property Trustee
to the Trustee will be deemed to have been canceled.
(b) A Global Subordinated Debenture may be transferred, in
whole but not in part, only to another nominee of the Depositary, or
to a successor Depositary selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or if at any time
the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act or other applicable statute or
regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be,
the Company will execute, and the Trustee, upon written notice from
the Company, will authenticate and deliver the Junior Subordinated
Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Subordinated Debenture in
exchange for such Global Subordinated Debenture. In addition, the
Company may at any time determine that the Junior Subordinated
Debentures shall no longer be represented by a Global Subordinated
Debenture. In such event the Company will execute, and the Trustee,
upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Junior Subordinated
Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Subordinated Debenture in
exchange for such Global Subordinated Debenture. Upon the exchange of
the Global Subordinated Debenture for such Junior Subordinated
Debentures in definitive registered form without coupons, in
authorized denominations, the Global Subordinated Debenture shall be
canceled by the Trustee. Such Junior Subordinated Debentures in
definitive registered form issued in exchange for the Global
Subordinated Debenture shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Junior Subordinated
Debentures to the Depositary for delivery to the Persons in whose
names such Junior Subordinated Debentures are so registered.
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2.05 INTEREST.
(a) Each Junior Subordinated Debenture will bear interest at
the rate of __% per annum (the "Coupon Rate") from the original date
of issuance until the principal thereof becomes due and payable, and
on any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears
on the fifteenth day of March, June, September and December in each
year (each, an "Interest Payment Date"), commencing on December 15,
1999, to the Person in whose name such Junior Subordinated Debenture
or any Predecessor Junior Subordinated Debenture is registered at the
close of business on the regular record date for such interest
installment, which, in respect of (i) Junior Subordinated Debentures
of which the Property Trustee is the Holder and the Preferred
Securities are in book-entry-only form or (ii) a Global Subordinated
Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if (A) the Junior Subordinated Debentures are held by the
Property Trustee and the Preferred Securities are no longer in
book-entry only form or (B) the Junior Subordinated Debentures are not
represented by a Global Subordinated Debenture, the record date for
such interest installment shall be the first day of the month in which
such payment is to be made. The amount of each interest payment due
with respect to the Junior Subordinated Debentures will include
amounts accrued through the date the interest payment is due.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of interest
payable for any period shorter than a full quarterly period for which
interest is computed will be computed on the basis of the actual
number of days elapsed in such a quarterly period. In the event that
any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which 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.
(c) If, at any time while the Property Trustee is the Holder
of any Junior Subordinated Debentures, the Trust or the Property
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority, then, in
any case, the Company will pay as additional interest ("Additional
Sums") on the Junior Subordinated Debentures held by the Property
Trustee such additional amounts as shall be required so that the net
amounts received and retained by the Trust and the Property Trustee
after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
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2.06 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Junior
Subordinated Debentures shall be executed on behalf of the Company by its Chief
Executive Officer, its President or any Vice President and attested by its
Secretary or Assistant Secretary. The signature of any of these officers on the
Junior Subordinated Debentures may be manual or facsimile.
Junior Subordinated Debentures 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 Junior Subordinated Debentures or did not hold such offices at the date
of such Junior Subordinated Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Junior Subordinated Debentures executed
by the Company to the Trustee for authentication, together with a Company order
for the authentication and delivery of such Junior Subordinated Debentures. The
Trustee in accordance with such Company order shall authenticate and deliver
such Junior Subordinated Debentures as provided in this Indenture and not
otherwise.
Upon the initial issuance, each Junior Subordinated Debenture shall be
dated ______________, 1999, and thereafter Junior Subordinated Debentures
issued hereunder shall be dated the date of their authentication.
No Junior Subordinated Debenture shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Junior Subordinated Debenture a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Junior Subordinated Debenture shall be
conclusive evidence, and the only evidence, that such Junior Subordinated
Debenture has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture.
2.07 REGISTRATION AND TRANSFER. The Company shall cause to be kept at
the Corporate Trust Office of the Trustee a register (the register maintained
in such office or any other office or agency pursuant to Section 5.02 being
herein sometimes referred to as the "Securities Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of the Junior Subordinated Debentures and transfers of the
Junior Subordinated Debentures. The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering the Junior Subordinated Debentures
and transfers of the Junior Subordinated Debentures as herein provided.
Upon surrender for registration of transfer of any Junior Subordinated
Debenture at an office or agency of the Company designated pursuant to Section
5.02 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, a new Junior Subordinated Debenture of the authorized
denomination.
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All Junior Subordinated Debentures issued upon any registration of
transfer of Junior Subordinated Debentures shall be valid obligations of the
Company, evidencing the same debt and entitled to the same benefits under this
Indenture as the Junior Subordinated Debentures surrendered upon such
registration of transfer.
Every Junior Subordinated Debenture presented or surrendered for
registration of transfer shall be duly endorsed for transfer (if so required by
the Company or the Trustee), or shall 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.
No service charge shall be made for any registration of transfer of
Junior Subordinated Debentures, 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 registration of transfer of Junior Subordinated Debentures.
The Company shall not be required to issue or register the transfer of
any Junior Subordinated Debenture during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Junior Subordinated Debentures selected for redemption pursuant to Article III
and ending at the close of business on the day of such mailing.
2.08 MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED DEBENTURES. If any mutilated Junior Subordinated Debenture is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Junior Subordinated
Debenture of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Junior
Subordinated Debenture and (b) 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 Junior Subordinated Debenture has been
acquired by 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 Junior Subordinated Debenture, a new Junior
Subordinated Debenture of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Debenture has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Junior Subordinated
Debenture, pay such Junior Subordinated Debenture.
Upon the issuance of any new Junior Subordinated Debenture under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge
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that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Junior Subordinated Debenture issued pursuant to this
Section in lieu of any destroyed, lost or stolen Junior Subordinated Debenture
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Junior Subordinated Debenture
shall be at any time enforceable by anyone, and shall be entitled to all of the
benefits of this Indenture.
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 Junior
Subordinated Debentures.
ARTICLE III
REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES
3.01 REDEMPTION. Subject to the Company having received prior approval
of the Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, the Company may redeem the
Junior Subordinated Debentures in accordance with this Article III.
3.02 SPECIAL EVENT REDEMPTION. Subject to the Company having received
the prior approval of the Federal Reserve, if then required under the
applicable capital guidelines or policies of the Federal Reserve, if a Special
Event has occurred and is continuing, then, notwithstanding Section 3.03, the
Company shall have the right upon not less than 30 days' nor more than 60 days'
notice to the Holders of the Junior Subordinated Debentures to redeem the
Junior Subordinated Debentures, in whole but not in part, for cash within 90
days following the occurrence of such Special Event (the "90-Day Period") at
the Redemption Price, provided that if at the time there is available to the
Company the opportunity to eliminate, within the 90-Day Period, the Tax Event
by taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure which
has no adverse effect on the Company, the Trust or the Holders of the Trust
Securities issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption, and, provided, further, that the Company shall
have no right to redeem the Junior Subordinated Debentures while the Trust is
pursuing any Ministerial Action to eliminate the Tax Event. The Redemption
Price shall be paid prior to 2:00 p.m., St. Louis, Missouri time, on the date
of such redemption or such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 12:00 noon, St. Louis, Missouri time, on the date such
Redemption Price is to be paid.
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3.03 OPTIONAL REDEMPTION BY COMPANY.
(a) Except as otherwise may be specified in this Indenture,
the Company shall have the right to redeem the Junior Subordinated
Debentures, in whole or in part, from time to time, on or after
_____________, 2004, at the Redemption Price. Any redemption pursuant
to this Section 3.03 will be made upon not less than 30 days' nor more
than 60 days' notice to the Holders of the Junior Subordinated
Debentures, at the Redemption Price. If the Junior Subordinated
Debentures are only partially redeemed pursuant to this Section 3.03,
the Junior Subordinated Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Trustee; provided, that if at
the time of redemption the Junior Subordinated Debentures are
registered as a Global Subordinated Debenture, the Depositary shall
determine, in accordance with its procedures, the principal amount of
such Junior Subordinated Debentures held by each Holder of Junior
Subordinated Debentures to be redeemed. The Redemption Price shall be
paid prior to 2:00 p.m., St. Louis, Missouri time, on the date of such
redemption or at such earlier time as the Company determines provided
that the Company shall deposit with the Trustee an amount sufficient
to pay the Redemption Price by 12:00 noon, St. Louis, Missouri time,
on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Junior Subordinated
Debentures would result in the delisting of the Preferred Securities
issued by the Trust from the NASDAQ National Market or any national
securities exchange or other organization on which the Preferred
Securities may then be listed, if any, the Company shall not be
permitted to effect such partial redemption and may only redeem the
Junior Subordinated Debentures in whole or in part to such extent as
would not cause such delisting.
3.04 NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Junior
Subordinated Debentures in accordance with the right reserved so to
do, the Company shall, or shall cause the Trustee to, give notice of
such redemption to Holders of the Junior Subordinated Debentures to be
redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the
date fixed for redemption to such Holders at their last addresses as
they shall appear upon the Securities Register. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Registered Holder receives
the notice. In any case, failure duly to give such notice to the
Holder of any Junior Subordinated Debenture designated for redemption
in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Junior
Subordinated Debentures. In the case of any redemption of Junior
Subordinated Debentures prior to the expiration of any restriction on
such redemption provided elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
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Each such notice of redemption shall specify the date fixed
for redemption and the Redemption Price, and shall state that payment
of the Redemption Price of such Junior Subordinated Debentures to be
redeemed will be made at the office or agency of the Property Trustee
in Wilmington, Delaware upon presentation and surrender of such Junior
Subordinated Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and
after said date interest will cease to accrue. If less than all the
Junior Subordinated Debentures are to be redeemed, the notice to the
Holders of Junior Subordinated Debentures to be redeemed in whole or
in part shall specify the particular Junior Subordinated Debentures to
be so redeemed. In case any Junior Subordinated Debenture is to be
redeemed in part only, the notice that relates to such Junior
Subordinated Debenture shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Junior Subordinated Debenture,
a new Junior Subordinated Debenture or Junior Subordinated Debentures
in principal amount equal to the unredeemed portion thereof shall be
issued to the Holder.
(b) If less than all the Junior Subordinated Debentures are
to be redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption as to the aggregate
principal amount of Junior Subordinated Debentures to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to ten
dollars U.S. ($10) or any integral multiple thereof), the Junior
Subordinated Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Junior
Subordinated Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chief Executive
Officer, its President or any Vice President, instruct the Trustee or
any paying agent to call all or any part of the Junior Subordinated
Debentures for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name of the
Company or in the name of the Trustee or the paying agent, as the
Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the case
may be, such Securities Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
3.05 PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Junior Subordinated Debentures or
portions of Junior Subordinated Debentures to be redeemed specified in
such notice shall become due and payable on the date and at the
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place stated in such notice at the Redemption Price (which includes
interest accrued to the date fixed for redemption) and interest on
such Junior Subordinated Debentures or portions of Junior Subordinated
Debentures shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
Redemption Price with respect to any such Junior Subordinated
Debentures or portions thereof. On presentation and surrender of such
Junior Subordinated Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, such
Junior Subordinated Debentures shall be paid and redeemed at the
Redemption Price (which includes the interest accrued thereon to the
date fixed for redemption) (but if the date fixed for redemption is an
Interest Payment Date, the interest installment payable on such date
shall be payable to the Registered Holder at the close of business on
the applicable record date pursuant to Section 2.05(a)).
(b) Upon presentation of any Junior Subordinated Debenture
that is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the Junior
Subordinated Debenture is presented shall deliver to the Holder
thereof, at the expense of the Company, a new Junior Subordinated
Debenture or Junior Subordinated Debentures of authorized
denominations in principal amount equal to the unredeemed portion of
the Junior Subordinated Debenture so presented.
3.06 NO SINKING FUND. The Junior Subordinated Debentures are not
entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.01 EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event of
Default has occurred and is continuing, the Company shall have the right, at
any time and from time to time during the term of the Junior Subordinated
Debentures, to defer payments of interest by extending the interest payment
period of such Junior Subordinated Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and payable; provided
that no Extended Interest Payment Period may extend beyond the Maturity Date.
To the extent permitted by applicable law, interest, the payment of which has
been deferred because of the extension of the interest payment period pursuant
to this Section 4.01, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Junior Subordinated
Debentures, including any Additional Sums and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Junior
Subordinated Debentures in whose names the Junior Subordinated Debentures are
registered in the Securities Register on the record date for the Interest
Payment Date coinciding with the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters, or extend
beyond the Maturity Date.
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Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
4.02 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only Registered Holder of
the Junior Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Administrative Trustees, the Property Trustee and the
Trustee of its selection of such Extended Interest Payment Period one
Business Day before the earlier of (i) the next succeeding date on
which Distributions are payable, or (ii) the date the Trust is
required to give notice of the record date, or the date such
Distributions are payable, to the Preferred Securities holders or to
the NASDAQ National Market or other applicable self-regulatory
organization, if any, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only Holder of the
Junior Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the Holders
of the Junior Subordinated Debentures and the Trustee written notice
of its selection of such Extended Interest Payment Period at least one
Business Day before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the Holders
of the Junior Subordinated Debentures or to the NASDAQ National Market
or other applicable self-regulatory organization, if any.
(c) The quarter in which any notice is given pursuant to
paragraph (a) or paragraph (b) of this Section 4.02 shall be counted
as one of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.01.
4.03 LIMITATION OF TRANSACTIONS DURING EXTENSION. If (a) the
Company shall exercise its right to defer payment of interest as provided in
Section 4.01; or (b) there shall have occurred any Event of Default, then the
Company shall be subject to the restrictions on payments set forth under
Section 5.06.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
5.01 PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly and
punctually pay or cause to be paid the principal of and interest on the Junior
Subordinated Debentures at the time and place and in the manner provided herein
and established with respect to such Junior Subordinated Debentures.
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5.02 MAINTENANCE OF AGENCY. So long as any Junior Subordinated
Debentures remain Outstanding, the Company agrees to maintain an office or
agency in Wilmington, Delaware, or at such other location or locations as may
be designated as provided in this Section 5.02, where (a) Junior Subordinated
Debentures may be presented for payment, (b) Junior Subordinated Debentures may
be presented as hereinabove authorized for registration of transfer and
exchange, and (c) notices and demands to or upon the Company in respect of the
Junior Subordinated Debentures and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its Chief Executive Officer, its President
or a Vice President and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, 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, notices and demands.
5.03 PAYING AGENTS.
(a) If the Company shall appoint one or more paying agents
for the Junior Subordinated Debentures, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(i) that it will hold all sums held by it as such
agent for the payment of the principal of or interest on the
Junior Subordinated Debentures (whether such sums have been
paid to it by the Company or by any other obligor) in trust
for the benefit of the Persons entitled thereto;
(ii) that it will give the Trustee notice of any
failure by the Company (or by any other obligor) to make any
payment of the principal of or interest on the Junior
Subordinated Debentures when the same shall be due and
payable;
(iii) that it will, at any time during the
continuance of any failure referred to in the preceding
paragraph (a)(ii) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(iv) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to the Junior Subordinated Debentures, it will on or before
each due date of the principal of or interest on Junior Subordinated
Debentures, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal or
interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and
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will promptly notify the Trustee of such action, or any failure (by it
or any other obligor) to take such action. Whenever the Company shall
have one or more paying agents for the Junior Subordinated Debentures,
it will, prior to each due date of the principal of or interest on the
Junior Subordinated Debentures, deposit with the paying agent a sum
sufficient to pay the principal or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 13.05, and (ii) 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 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 and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released from
all further liability with respect to such money.
5.04 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 9.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
5.05 COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company will not,
while any of the Junior Subordinated Debentures remain Outstanding, consolidate
with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
5.06 RESTRICTIONS ON CERTAIN PAYMENTS. If at any time (a) there shall
have occurred any event of which the Company has actual knowledge that (i) with
the giving of notice or the lapse of time, or both, would constitute an Event
of Default and (ii) in respect to which the Company shall not have taken
reasonable steps to cure, or (b) the Company shall have given notice of its
election of an Extended Interest Payment Period as provided herein with respect
to the Junior Subordinated Debentures and shall not have rescinded such notice,
or such Extended Interest Payment Period, or any extension thereof, shall be
continuing; or (c) while the Junior Subordinated Debentures are held by the
Trust, the Company shall be in default with respect to its payment of any
obligation under the Preferred Securities Guarantee, then the Company will 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, interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company
(including the Junior Subordinated Debentures) that rank pari passu with or
junior in interest to the Junior Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any Subsidiary of the Company if such guarantee ranks pari passu or junior in
interest to the Junior Subordinated Debentures (other than (A) dividends or
distributions
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in common stock, (B) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future or the redemption or repurchase of any such rights
pursuant thereto, (C) payments under the Preferred Securities Guarantee and (D)
purchases of common stock related to the issuance of common stock or rights
under any of the Company's benefit plans for its directors, officers or
employees).
5.07 COVENANTS AS TO THE TRUST. For so long as the Trust Securities of
the Trust remain outstanding, the Company will (a) maintain 100% direct or
indirect ownership of the Common Securities of the Trust; provided, however,
that any permitted successor of the Company under this Indenture may succeed to
the Company's ownership of the Common Securities, (b) use its reasonable
efforts to cause the Trust (i) to remain a business trust, except in connection
with a distribution of Junior Subordinated Debentures, the redemption of all of
the Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement, and (ii) to otherwise
continue not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes and (c) to use its
reasonable efforts to cause each Holder of Trust Securities to be treated as
owning an individual undivided beneficial interest in the Junior Subordinated
Debentures.
If the Junior Subordinated Debentures are to be issued as a Global
Subordinated Debenture in connection with the distribution of the Junior
Subordinated Debentures to the holders of the Preferred Securities issued by
the Trust upon a Dissolution Event, the Company will use its best efforts to
list such Junior Subordinated Debentures on the NASDAQ National Market or on
such other exchange as the Preferred Securities may then be listed.
ARTICLE VI
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
6.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.05(a)) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company 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; provided, however, that, in either case, no
such list need be furnished if the Trustee shall be the Securities Registrar.
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6.02 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the Holders contained in the most recent list furnished to it as
provided in Section 6.01 and as to the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Junior
Subordinated Debentures.
6.03 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections,
then to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to any applicable
rules and regulations of the Commission.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable overnight delivery service
that provides for evidence of receipt, to the Securityholders, as
their names and addresses appear upon the Securities Register, within
30 days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
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6.04 REPORTS BY THE TRUSTEE.
(a) Beginning July 31, 2000, on or before July 31 in each
year in which any of the Junior Subordinated Debentures are
Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Securities Register, a brief report dated as of the preceding
December 31, if and to the extent required under Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the
Company, and also with the Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
7.01 EVENTS OF DEFAULT.
(a) Whenever used herein, "Event of Default" means any one or
more of the following events that has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Junior Subordinated
Debentures, as and when the same shall become due and
payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the
terms of this Indenture shall not constitute a default in the
payment of interest for this purpose;
(ii) the Company defaults in the payment of the
principal of any of the Junior Subordinated Debentures as and
when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(iii) the Company fails to observe or perform any
other of its covenants or agreements hereunder with respect
to the Junior Subordinated Debentures for a period of 90 days
after the date on which written notice of such failure,
requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, 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 principal amount of the Junior
Subordinated Debentures at the time Outstanding;
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(iv) the Company pursuant to or within the meaning
of any Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in an
involuntary case, (C) consents to the appointment of a
custodian of it or for all or substantially all of its
property or (D) makes a general assignment for the benefit of
its creditors;
(v) a court of competent jurisdiction enters an
order under any Bankruptcy Law that (A) is for relief against
the Company in an involuntary case, (B) appoints a custodian
of the Company for all or substantially all of its property,
or (C) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days; or
(vi) in the event Junior Subordinated Debentures are
issued to the Trust or a trustee of the Trust in connection
with the issuance of Trust Securities by the Trust, the Trust
shall have voluntarily or involuntarily dissolved, wound up
its business or otherwise terminated its existence, except in
connection with (A) the distribution of Junior Subordinated
Debentures to holders of Trust Securities in liquidation of
their interests in the Trust, (B) the redemption of all of
the outstanding Trust Securities of the Trust or (C) certain
mergers, consolidations or amalgamations, each as permitted
by the Trust Agreement.
(b) In each and every such case, unless the principal of all
the Junior Subordinated Debentures shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debentures then
Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders) may declare the principal of
all the Junior Subordinated Debentures to be due and payable
immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Junior Subordinated Debentures
to the contrary.
(c) At any time after the principal of the Junior
Subordinated Debentures shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the
Holders of a majority in aggregate principal amount of the Junior
Subordinated Debentures then Outstanding, 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 all matured installments of interest
upon all the Junior Subordinated Debentures and the principal of any
and all Junior Subordinated Debentures that shall have become due
otherwise than by acceleration (with interest upon such principal and,
to the extent that such payment is enforceable under applicable law,
upon overdue installments of interest, at the rate per annum expressed
in the Junior Subordinated Debentures to the date of such payment or
deposit) and the amount payable to the Trustee under Section 9.06, and
(ii) any and all Events of Default under this Indenture, other than
the nonpayment of
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principal on Junior Subordinated Debentures that shall not have become
due by their terms, shall have been remedied or waived as provided in
Section 7.06. Should the Holders fail to annul such declaration and
waive such default, then the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities shall have such right.
No such rescission and annulment shall extend to or shall
affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Junior Subordinated Debentures under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then
and in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall
continue as though no such proceedings had been taken.
7.02 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (i) in case it shall default
in the payment of any installment of interest on any of the Junior
Subordinated Debentures as and when the same shall have become due and
payable, and such default shall have continued for a period of 90
Business Days, or (ii) in case it shall default in the payment of the
principal of any of the Junior Subordinated Debentures when the same
shall have become due and payable, whether upon maturity of the Junior
Subordinated Debentures or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to
the Trustee, for the benefit of the Holders of the Junior Subordinated
Debentures, the whole amount that then shall have become due and
payable on all such Junior Subordinated Debentures for principal or
interest, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is
enforceable under applicable law and, if the Junior Subordinated
Debentures are held by the Trust or a trustee of the Trust, without
duplication of any other amounts paid by the Trust or trustee in
respect thereof) upon overdue installments of interest at the rate per
annum expressed in the Junior Subordinated Debentures; and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to the
Trustee under Section 9.06.
(b) If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action
or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Junior
Subordinated Debentures and collect the moneys adjudged or
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decreed to be payable in the manner provided by law out of the
property of the Company or other obligor upon the Junior Subordinated
Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company or the creditors or
property of either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of Junior Subordinated Debentures allowed
for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section
9.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders to make
such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under Section
9.06.
(d) All rights of action and of asserting claims under this
Indenture may be enforced by the Trustee without the possession of any
of the Junior Subordinated Debentures, or the production thereof at
any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 9.06, be for the ratable benefit of the Holders of the Junior
Subordinated Debentures.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Junior Subordinated Debentures or the rights
of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
7.03 APPLICATION OF MONEYS COLLECTED. Any moneys collected by the
Trustee pursuant to this Article with respect to the Junior Subordinated
Debentures shall be applied
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in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the Junior Subordinated Debentures, and notation thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST, to the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 9.06;
SECOND, to the payment of all Senior and Subordinated Debt of
the Company if and to the extent required by Article XVI; and
THIRD, to the payment of the amounts then due and unpaid upon
Junior Subordinated Debentures for principal and 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 Junior Subordinated Debentures for
principal and interest, respectively.
7.04 LIMITATION ON SUITS. No Holder shall have any right by virtue of
or by availing any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such Holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof; (b) the
Holders of not less than 25% in aggregate principal amount of the Junior
Subordinated Debentures then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (c) such Holder or Holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (d) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding; and (e) during such
60-day period, the Holders of a majority in principal amount of the Junior
Subordinated Debentures do not give the Trustee a direction inconsistent with
the request.
Notwithstanding any other provisions of this Indenture to the
contrary, the right of any Holder to receive payment of the principal of and
interest on the Junior Subordinated Debentures on or after the respective due
dates (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such Holder; and by accepting a Junior Subordinated Debenture hereunder it is
expressly understood, intended and covenanted by the Holder thereof with every
other such Holder and the Trustee, that no one or more Holders shall have any
right in any manner whatsoever by virtue of or by availing any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or seek to obtain priority over or preference to any such other
Holders, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Junior Subordinated Debentures. For the protection and enforcement of the
provisions of this Section, each
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and every Securityholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
7.05 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) Except as otherwise provided in Section 7.02, all powers
and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the Holders of the Junior Subordinated
Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Junior
Subordinated Debentures.
(b) No delay or omission of the Trustee or of any Holder of
any of the Junior Subordinated Debentures to exercise any right or
power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or on acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.
7.06 CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Junior Subordinated Debentures at the time
Outstanding, determined in accordance with Section 10.04, shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of
Section 9.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The Holders of a majority in
aggregate principal amount of the Junior Subordinated Debentures at the time
Outstanding affected thereby, determined in accordance with Section 10.04, may
on behalf of the Holders of all of the Junior Subordinated Debentures waive any
past default in the performance of any of the covenants contained herein and
its consequences, except (a) a default in the payment of the principal of or
interest on any of the Junior Subordinated Debentures as and when the same
shall become due by its terms otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal has been deposited with the Trustee in accordance with
Section 7.01(c)), (b) a default in the covenants contained in Section 5.06 or
(c) in respect of a covenant or provision hereof which under Article XI cannot
be modified or amended without the consent of the Holder of each Outstanding
Junior Subordinated Debenture affected; provided, however, that if the Junior
Subordinated Debentures are held by the Trust or a Trustee of the Trust, such
waiver or modification to such waiver shall not be effective until the Holders
of a majority in Liquidation Amount of Trust
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Securities of the Trust shall have consented to such waiver or modification to
such waiver; provided further, that if the consent of the Holder of each
Outstanding Junior Subordinated Debenture is required, such waiver shall not be
effective until each Holder of the Trust Securities of the Trust shall have
consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the Holders of the Junior Subordinated Debentures shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
7.07 UNDERTAKING TO PAY COSTS. All parties to this Indenture agree,
and each Holder of any Junior Subordinated Debentures by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Junior Subordinated Debentures, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on the Junior Subordinated Debentures on or after the due dates
thereof.
ARTICLE VIII
FORM OF JUNIOR SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
8.01 FORM OF JUNIOR SUBORDINATED DEBENTURE. The Junior Subordinated
Debenture and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the forms contained as Exhibit A to this
Indenture, attached hereto and incorporated herein by reference.
8.02 ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES. Junior
Subordinated Debentures in the aggregate principal amount of $__________ may,
upon execution of this Indenture, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver the Junior Subordinated Debentures to or upon the written order of
the Company, signed by its Chairman, its Vice Chairman, its Chief Executive
Officer, its President or any Vice President, without any further action by the
Company.
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ARTICLE IX
CONCERNING THE TRUSTEE
9.01 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect to the Junior
Subordinated Debentures such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred (that has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) 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) prior to the occurrence of an 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
Trustee shall be determined solely by the express
provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or
obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates
or opinions that by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirement of this Indenture;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(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 the Holders of not
less than a majority in principal amount of the Junior
Subordinated Debentures
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at the time Outstanding relating to the time, method and
place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture; and
(iv) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
(c) 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. For the purpose of this
Section 9.01, 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.
9.02 CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 9.01:
(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, consent, order,
approval, bond, 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by the Chief
Executive Officer, the President or any Vice President and by the
Secretary or an Assistant Secretary or the Chief Accounting Officer
thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted hereunder in good faith and in reliance
thereon;
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(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default (that
has not been cured or waived) to exercise such of the rights and
powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs;
(e) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other papers or documents, unless
requested in writing so to do by the Holders of not less than a
majority in principal amount of the Outstanding Junior Subordinated
Debentures (determined as provided in Section 10.04); provided,
however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; 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.
9.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF THE
JUNIOR SUBORDINATED DEBENTURES.
(a) The recitals contained herein and in the Junior
Subordinated Debentures shall be taken as the statements of the
Company and the Trustee assumes no responsibility for the correctness
of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Junior Subordinated
Debentures.
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(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Junior Subordinated
Debentures or of the proceeds of such Junior Subordinated Debentures,
or for the use or application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture, or for the use or
application of any moneys received by any paying agent other than the
Trustee.
9.04 MAY HOLD JUNIOR SUBORDINATED DEBENTURES. The Trustee or any
paying agent or Securities Registrar, in its individual or any other capacity,
may become the owner or pledgee of Junior Subordinated Debentures with the same
rights it would have if it were not Trustee, paying agent or Securities
Registrar.
9.05 MONEYS HELD IN TRUST. Subject to the provisions of Section 13.05,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
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 moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
9.06 COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder
of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Junior Subordinated
Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the
Holders of the Junior Subordinated Debentures.
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(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 7.01(iv), (v) or (vi)
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.
9.07 RELIANCE ON OFFICERS' CERTIFICATE. Except as otherwise provided
in Section 9.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
9.08 DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee has or
shall acquire any "conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
9.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all times
be a Trustee with respect to the Junior Subordinated Debentures issued
hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No Affiliate of the Company may serve
as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.10.
9.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee, or any successor hereafter appointed, may at
any time resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Securities Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning
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Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been
a bona fide Holder of Junior Subordinated Debentures for at least six
months may, subject to the provisions of Section 7.07, on behalf of
such Securityholder and all other Holders, petition any such court for
the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 9.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide
Holder of Junior Subordinated Debentures for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.09 and shall fail
to resign after written request therefor by the Company or by
any such Securityholder; or
(iii) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the
Company may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of
Section 7.07, unless the Trustee's duty to resign is stayed
as provided herein, any Securityholder who has been a bona
fide Holder of Junior Subordinated Debentures for at least
six months may, on behalf of that Holder and all other
Holders, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Junior Subordinated Debentures at the time Outstanding may at
any time remove the Trustee by so notifying the Trustee and the
Company and may appoint a successor Trustee with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 9.11.
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9.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
trustee, 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 such rights,
powers and trusts referred to in paragraph (a) of this Section.
(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.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Securities Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
9.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be qualified and eligible under the provisions of this Article IX,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. In
case any Junior Subordinated Debentures 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 Junior Subordinated Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Junior
Subordinated Debentures.
9.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or
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been removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
9.14 APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of the
Junior Subordinated Debentures remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Junior Subordinated Debentures issued upon original
issuance, exchange, registration of transfer or partial redemption thereof or
pursuant to Section 2.08, and Junior Subordinated Debentures 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 Junior Subordinated Debentures 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 and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of such supervision or examining authority, 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,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation 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.
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
notice of resignation or upon such 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 mail written notice of
such appointment by first class mail, postage prepaid, to all Securityholders
as their names and addresses appear in the Securities Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all
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the rights, powers and duties of its predecessor hereunder, with the like
effect as if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee 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 payments, subject to the
provisions of Section 9.06.
If an appointment is made pursuant to this Section, the Junior
Subordinated Debentures may have endorsed thereon, in lieu of the form of
certificate of authentication set forth in Section 8.01, a certificate of
authentication in the following form:
"This is one of the Junior Subordinated Debentures described in the
within mentioned Indenture."
------------------------------------,
as Trustee
By
------------------------------------,
as Authenticating Agent
By
------------------------------------,
Authorized Signature
ARTICLE X
CONCERNING THE SECURITYHOLDERS
10.01 EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the Holders of a majority or specified percentage
in aggregate principal amount of the Junior Subordinated Debentures may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such majority or specified percentage
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such Holders in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall
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be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Junior Subordinated
Debentures have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Junior Subordinated Debentures shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
10.02 PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the provisions
of Section 6.01, proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or his agent or proxy and proof of
the holding by any Person of any of the Junior Subordinated Debentures shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Junior Subordinated Debentures shall be
proved by the Securities Register or by a certificate of the
Securities Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
10.03 WHO MAY BE DEEMED OWNERS. Prior to the due presentment for
registration of transfer of any Junior Subordinated Debenture, the Company, the
Trustee, any paying agent and any Securities Registrar may deem and treat the
Person in whose name such Junior Subordinated Debenture shall be registered
upon the books of the Company as the absolute owner of such Junior Subordinated
Debenture (whether or not such Junior Subordinated Debenture shall be overdue
and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Securities Registrar) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.03) interest on such
Junior Subordinated Debenture and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Securities Registrar shall
be affected by any notice to the contrary.
10.04 CERTAIN JUNIOR SUBORDINATED DEBENTURES OWNED BY COMPANY
DISREGARDED. In determining whether the Holders of the requisite aggregate
principal amount of Junior Subordinated Debentures have concurred in any
direction, consent or waiver under this Indenture, the Junior Subordinated
Debentures that are owned by the Company or any other obligor on the Junior
Subordinated Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Junior Subordinated Debentures shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Junior Subordinated Debentures that a
Responsible Officer of the Trustee actually knows are so owned shall be so
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disregarded. The Junior Subordinated Debentures so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section,
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right with respect to such Junior Subordinated Debentures and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
10.05 ACTIONS BINDING ON FUTURE SECURITYHOLDERS. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 10.01, of
the taking of any action by the Holders of the majority or percentage in
aggregate principal amount of the Junior Subordinated Debentures specified in
this Indenture in connection with such action, any Holder who is shown by the
evidence to have consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 10.02, revoke such
action so far as concerns such Holder's Junior Subordinated Debentures. Except
as aforesaid any such action taken by the Holder shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Holder's Junior
Subordinated Debentures, and of any Junior Subordinated Debentures issued in
exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Junior Subordinated Debentures. Any action taken by the Holders of the majority
or percentage in aggregate principal amount of the Junior Subordinated
Debentures specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Junior Subordinated Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
11.01 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITYHOLDERS.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein,
or in the Junior Subordinated Debentures, provided that any such
action does not materially adversely affect the interests of the
Holders or the holders of the Preferred Securities so long as they
remain outstanding;
(b) to comply with Article XII;
(c) to provide for uncertificated Junior Subordinated
Debentures in addition to or in place of certificated Junior
Subordinated Debentures;
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(d) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Junior Subordinated
Debentures, as herein set forth;
(f) to make any change that does not adversely affect the
rights of any Securityholder in any material respect; or
(g) to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or to add to the
rights of the Holders.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the Holders of any of the Junior Subordinated Debentures at the time
Outstanding, notwithstanding any of the provisions of Section 11.02.
11.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With the
consent (evidenced as provided in Section 10.01) of the Holders of not less than
a majority in aggregate principal amount of the Junior Subordinated Debentures
at the time Outstanding, the Company, when authorized by Board Resolutions, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 11.01 the rights of the Holders of the Junior Subordinated
Debentures under this Indenture; provided, however, that no such supplemental
indenture shall without the consent of the Holders of each Junior Subordinated
Debenture then Outstanding, (a) change (except as expressly provided herein
pursuant to Section 2.02) the stated maturity of the Junior Subordinated
Debentures or reduce the principal amount thereof; or reduce the rate or extend
(except as expressly provided herein pursuant to Section 4.01) the time of
payment of interest thereon; or (b) reduce the percentage of principal amount of
Junior Subordinated Debentures, the Holders of which are required to consent to
any such supplemental indenture; provided, further, that if the Junior
Subordinated Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders of a majority in
aggregate Liquidation Amount of Preferred Securities shall have consented to
such supplemental indenture; provided further, that if the consent of the Holder
of each Outstanding
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Junior Subordinated Debenture is required, such supplemental indenture shall
not be effective until each Holder of the Trust Securities shall have consented
to such supplemental indenture.
It shall not be necessary for the consent of the Securityholders to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
11.03 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section
12.01, this Indenture shall be and be deemed to be modified and amended in
accordance therewith.
11.04 JUNIOR SUBORDINATED DEBENTURES AFFECTED BY SUPPLEMENTAL
INDENTURES. Junior Subordinated Debentures, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 12.01, may
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 Junior
Subordinated Debentures so modified as to conform, in the opinion of the Board
of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Junior Subordinated Debentures then
Outstanding.
11.05 EXECUTION OF SUPPLEMENTAL INDENTURES. Upon the request of the
Company, accompanied by Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 9.01,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Securities
Register. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
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ARTICLE XII
SUCCESSOR CORPORATION
12.01 COMPANY MAY CONSOLIDATE, ETC. 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)
in case the Company consolidates with or merges into another Person or conveys
or transfers its properties and assets substantially as an entirety to any
Person, the successor Person is organized under the laws of the United States
or any state or the District of Columbia, and such successor Person expressly
assumes the Company's obligations on the Junior Subordinated Debentures issued
under this Indenture; (b) immediately after giving effect thereto, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and (c) such
successor Person expressly assumes the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept and
performed by the Company by executing and delivering a supplemental indenture
in form and substance satisfactory to the Trustee.
12.02 SUCCESSOR SUBSTITUTED.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by
the successor Person by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and interest on all of the Junior
Subordinated Debentures Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture
to be performed by the Company, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had
been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under
this Indenture and the Junior Subordinated Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in phraseology
and form (but not in substance) may be made in the Junior Subordinated
Debentures thereafter to be issued as may be appropriate.
12.03 EVIDENCE OF CONSOLIDATION, ETC., TO TRUSTEE. The Trustee,
subject to the provisions of Section 9.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
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ARTICLE XIII
SATISFACTION AND DISCHARGE
13.01 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Junior
Subordinated Debentures theretofore authenticated (other than any Junior
Subordinated Debentures that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.08) and Junior
Subordinated Debentures for whose payment money or Governmental Obligations
have theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 13.05); or (b) all such Junior Subordinated Debentures not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a combination
thereof sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Junior
Subordinated Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company; then this Indenture shall thereupon cease to be of further effect
except for the provisions of Sections 2.02, 2.03, 2.04, 2.05, 4.01, 4.02, 4.03
and 9.10, that shall survive until the date of maturity or redemption date, as
the case may be, and Sections 9.06 and 13.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
13.02 DISCHARGE OF OBLIGATIONS. If at any time all such Junior
Subordinated Debentures not theretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
13.01 shall have been paid by the Company by depositing irrevocably with the
Trustee, as trust funds, moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Junior Subordinated
Debentures not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then after
the date such moneys or Governmental Obligations, as the case may be, are
deposited with the Trustee the obligations of the Company under this Indenture
shall cease to be of further effect except for the provisions of Sections 2.02,
2.03, 2.04, 2.05, 4.01, 4.02, 4.03, 9.06, 9.10 and 13.05 hereof that shall
survive until such Junior Subordinated Debentures shall mature and be paid.
Thereafter, Sections 9.06 and 13.05 shall survive.
13.03 DEPOSITED MONEYS TO BE HELD IN TRUST. All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 13.01 or 13.02
shall be held in trust and
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shall be available for payment as due, either directly or through any paying
agent (including the Company acting as its own paying agent), to the Holders of
the Junior Subordinated Debentures for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
13.04 PAYMENT OF MONEYS HELD BY PAYING AGENTS. In connection with the
satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
13.05 REPAYMENT TO COMPANY. Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company in
trust for payment of principal of or interest on the Junior Subordinated
Debentures that are not applied but remain unclaimed by the Holders of such
Junior Subordinated Debentures for at least two years after the date upon which
the principal of or interest on such Junior Subordinated Debentures shall have
respectively become due and payable, shall be repaid to the Company on the
second annual anniversary of when such payment was originally due or (if then
held by the Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further liability with
respect to such moneys or Governmental Obligations, and the Holder of any of
the Junior Subordinated Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
14.01 NO RECOURSE. No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Junior Subordinated Debenture, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director as such, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Junior Subordinated Debentures or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as
such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements
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contained in this Indenture or in any of the Junior Subordinated Debentures or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issuance of
such Junior Subordinated Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.01 EFFECT ON SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company or the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
15.02 ACTIONS BY SUCCESSOR. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the Company.
15.03 SURRENDER OF COMPANY POWERS. The Company by instrument in
writing executed by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company and as to any successor corporation.
15.04 NOTICES. Except as otherwise expressly provided herein any
notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Junior
Subordinated Debentures to or on the Company may be given or served by being
deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: c/o Enterbank Holdings, Inc., 150 North Meramec, Clayton, Missouri
63105, Attention: Chief Executive Officer. Any notice, election, request or
demand by the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
15.05 GOVERNING LAW. This Indenture and each Junior Subordinated
Debenture shall be deemed to be a contract made under the internal laws of the
State of Missouri and for all purposes shall be construed in accordance with
the laws of said state, provided that the immunities and the standard of care
of the Trustee shall be governed by Delaware law.
15.06 TREATMENT OF JUNIOR SUBORDINATED DEBENTURES AS DEBT. It is
intended that the Junior Subordinated Debentures will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
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15.07 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion delivered to the Trustee
with respect to compliance with a condition or covenant in this
Indenture shall include (i) a statement that the Person making such
certificate or opinion has read such covenant or condition; (ii) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the
opinion of such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and (iv) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied
with.
15.08 PAYMENTS ON BUSINESS DAYS. In any case where the date of
maturity of interest or principal of the Junior Subordinated Debentures or the
date of redemption of the Junior Subordinated Debentures shall not be a
Business Day, then payment of interest or principal will be made on the next
succeeding Business Day (without any additional 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 the date such payment was originally payable.
15.09 CONFLICT WITH TRUST INDENTURE ACT. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
15.10 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
15.11 SEPARABILITY. In case any one or more of the provisions
contained in this Indenture or in the Junior Subordinated Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of the Junior Subordinated Debentures, but this
Indenture and the Junior Subordinated Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
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15.12 ASSIGNMENT. The Company will have the right at all times to
assign any of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided that, in
the event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties
hereto.
15.13 ACKNOWLEDGMENT OF RIGHTS. The Company acknowledges that, with
respect to any Junior Subordinated Debentures held by the Trust or a trustee of
the Trust, if the Property Trustee of the Trust fails to enforce its rights
under this Indenture as the Holder of the Junior Subordinated Debentures held
as the assets of the Trust, any holder of Preferred Securities may institute
legal proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on
the redemption date), the Company acknowledges that a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such holder of the principal of or interest on the Junior Subordinated
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Junior Subordinated Debentures. This Section 15.13 may not be
amended without the prior written consent of the holders of all of the
Preferred Securities.
ARTICLE XVI
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES
16.01 AGREEMENT TO SUBORDINATE. The Company covenants and agrees, and
each Holder of Junior Subordinated Debentures issued hereunder by such Holder's
acceptance thereof likewise covenants and agrees, that all Junior Subordinated
Debentures shall be issued subject to the provisions of this Article XVI; and
each Holder, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of and interest on all
Junior Subordinated Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior and Subordinated Debt, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XVI shall prevent the occurrence of any
default or Event of Default hereunder.
16.02 DEFAULT ON SENIOR AND SUBORDINATED DEBT. In the event and during
the continuation of any default by the Company in the payment of principal,
premium, interest or any
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other payment due on any Senior and Subordinated Debt of the Company or in the
event that the maturity of any Senior and Subordinated Debt of the Company has
been accelerated because of a default, then, in either case, no payment shall
be made by the Company with respect to the principal of or interest on the
Junior Subordinated Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior and
Subordinated Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior and
Subordinated Debt may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior and Subordinated
Debt (or their representative or representatives or a trustee) notify the
Trustee in writing within 90 days of such payment of the amounts then due and
owing on the Senior and Subordinated Debt and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior and
Subordinated Debt.
16.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any payment by the
Company or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior and Subordinated Debt of the Company shall
first be paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account of the
principal or interest on the Junior Subordinated Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled to receive from the Company, except for the provisions of
this Article XVI, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under the Indenture if
received by them or it, directly to the holders of Senior and Subordinated Debt
of the Company (pro rata to such holders on the basis of the respective amounts
of Senior and Subordinated Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior and Subordinated Debt may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior and
Subordinated Debt in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior and
Subordinated Debt, before any payment or distribution is made to the Holders or
to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior and Subordinated Debt of the Company is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to
50
<PAGE> 57
the holders of such Senior and Subordinated Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior and Subordinated Debt may have
been issued, and their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior and Subordinated Debt of
the Company, as the case may be, remaining unpaid to the extent necessary to
pay such Senior and Subordinated Debt in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the benefit of the holders of such Senior and Subordinated Debt.
For purposes of this Article XVI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XVI with respect to the Junior Subordinated Debentures to the payment
of all Senior and Subordinated Debt of the Company, as the case may be, that
may at the time be outstanding, provided that (a) such Senior and Subordinated
Debt is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (b) the rights of the holders of such
Senior and Subordinated Debt are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article XII of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 16.03 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XII of this Indenture. Nothing in Section
16.02 or in this Section 16.03 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 9.06 of this Indenture.
16.04 SUBROGATION. Subject to the payment in full of all Senior and
Subordinated Debt of the Company, the rights of the Holders of the Junior
Subordinated Debentures shall be subrogated to the rights of the holders of
such Senior and Subordinated Debt to receive payments or distributions of cash,
property or securities of the Company, as the case may be, applicable to such
Senior and Subordinated Debt until the principal of and interest on the Junior
Subordinated Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior and
Subordinated Debt of any cash, property or securities to which the Holders of
the Junior Subordinated Debentures or the Trustee would be entitled except for
the provisions of this Article XVI, and no payment over pursuant to the
provisions of this Article XVI to or for the benefit of the holders of such
Senior and Subordinated Debt by Holders of the Junior Subordinated Debentures
or the Trustee, shall, as between the Company, its creditors other than holders
of Senior and Subordinated Debt of the Company, and the Holders of the Junior
Subordinated Debentures, be deemed to be a payment by the Company to or on
account of such Senior and Subordinated Debt. It is understood that the
provisions of this Article XVI are and are intended solely for the purposes of
defining the relative rights of the Holders of the Junior Subordinated
Debentures, on the one hand, and the holders of such Senior and Subordinated
Debt on the other hand.
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<PAGE> 58
Nothing contained in this Article XVI or elsewhere in this Indenture
or in the Junior Subordinated Debentures is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior and
Subordinated Debt of the Company, and the Holders of the Junior Subordinated
Debentures, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Junior Subordinated Debentures the principal of
and interest on the Junior Subordinated Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Junior Subordinated
Debentures and creditors of the Company, other than the holders of Senior and
Subordinated Debt of the Company, nor shall anything herein or therein prevent
the Trustee or the Holder of any Junior Subordinated Debenture from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XVI of the holders
of such Senior and Subordinated Debt in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XVI, the Trustee, subject to the provisions of Section 9.01,
and the Holders of the Junior Subordinated Debentures shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Junior Subordinated Debentures, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior and
Subordinated Debt and other indebtedness of the Company, as the case may be,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XVI.
16.05 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of Junior
Subordinated Debentures by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVI and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
16.06 NOTICE BY THE COMPANY. 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 of moneys to or by the Trustee in
respect of the Junior Subordinated Debentures pursuant to the provisions of
this Article XVI. Notwithstanding the provisions of this Article XVI or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee in respect of the Junior Subordinated
Debentures pursuant to the provisions of this Article XVI, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior and Subordinated Debt or from
any trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 9.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section
52
<PAGE> 59
16.06 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Junior
Subordinated Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which it was received, and shall
not be affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
The Trustee, subject to the provisions of Section 9.01, shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior and Subordinated Debt of
the Company (or a trustee on behalf of such holder), to establish that such
notice has been given by a holder of such Senior and Subordinated Debt or a
trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of such Senior and Subordinated Debt to
participate in any payment or distribution pursuant to this Article XVI, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior and Subordinated
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XVI, 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.
16.07 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR AND SUBORDINATED DEBT.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article XVI in respect of any Senior and Subordinated Debt at any
time held by it, to the same extent as any other holder of Senior and
Subordinated Debt, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Senior and Subordinated Debt of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XVI,
and no implied covenants or obligations with respect to the holders of such
Senior and Subordinated Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior and Subordinated Debt and, subject to the provisions of
Section 9.01, the Trustee shall not be liable to any holder of such Senior and
Subordinated Debt if it shall pay over or deliver to Holders of Junior
Subordinated Debentures, the Company or any other Person money or assets to
which any holder of such Senior and Subordinated Debt shall be entitled by
virtue of this Article XVI or otherwise.
16.08 SUBORDINATION MAY NOT BE IMPAIRED. No right of any present or
future holder of any Senior and Subordinated Debt of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
53
<PAGE> 60
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior and Subordinated Debt of the Company may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Junior Subordinated Debentures, without incurring responsibility
to the Holders of the Junior Subordinated Debentures and without impairing or
releasing the subordination provided in this Article XVI or the obligations
hereunder of the Holders of the Junior Subordinated Debentures to the holders
of such Senior and Subordinated Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior and Subordinated Debt, or otherwise amend or
supplement in any manner such Senior and Subordinated Debt or any instrument
evidencing the same or any agreement under which such Senior and Subordinated
Debt is outstanding; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Senior and Subordinated
Debt; (c) release any Person liable in any manner for the collection of such
Senior and Subordinated Debt; and (d) exercise or refrain from exercising any
rights against the Company and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ENTERBANK HOLDINGS, INC.
By:
---------------------------------
Chief Executive Officer
Attest:
- ---------------------------
WILMINGTON TRUST COMPANY, as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Attest:
- ---------------------------
54
<PAGE> 61
EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)
Registered Principal Amount
Registered No. _______________ $__________
[CUSIP NO. _______________]
ENTERBANK HOLDINGS, INC.
____% JUNIOR SUBORDINATED DEBENTURE
DUE ________________, 2029
ENTERBANK HOLDINGS, INC., a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to WILMINGTON TRUST
COMPANY as Property Trustee of EBH Capital Trust I or registered assigns, the
principal sum of _______________________________________ Dollars ($__________)
on ________________, 2029 (which date may be shortened as provided in the
Indenture, the "Stated Maturity"), and to pay interest on said principal sum
from ________________, 1999, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on the 15th day of March, June, September and December in each year
commencing December 15, 1999, at the rate of ____% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of each
interest payment due with respect to the Junior Subordinated Debentures will
include amounts accrued through the date the interest payment is due. The
amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on this Junior Subordinated Debenture is not a
Business Day (as defined in the Indenture), then payment of interest 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. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Junior Subordinated Debenture (or one or more Predecessor
Junior Subordinated Debentures, as defined in the Indenture) is registered at
the close of business on the regular record date for such interest installment,
which shall be the close of business on the business day next preceding such
Interest Payment Date unless otherwise provided in the Indenture. The principal
of and the interest on this Junior Subordinated Debenture shall be payable at
the office or
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<PAGE> 62
agency of the Trustee (as defined in the Indenture) maintained for that purpose
in any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the Registered Holder (as defined in the Indenture) at such
address as shall appear in the Securities Register (as defined in the
Indenture). Notwithstanding the foregoing, so long as the Holder of this Junior
Subordinated Debenture is the Property Trustee (as defined in the Indenture),
the payment of the principal of and interest on this Junior Subordinated
Debenture will be made at such place and to such account as may be designated
by the Property Trustee.
The Stated Maturity may be shortened at any time by the Company to any
date not earlier than ________________, 2004, subject to the Company having
received prior approval of the Federal Reserve (as defined in the Indenture) if
then required under applicable capital guidelines or policies of the Federal
Reserve.
The indebtedness evidenced by this Junior Subordinated Debenture is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior and Subordinated Debt (as
defined in the Indenture), and this Junior Subordinated Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Junior Subordinated Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior and Subordinated Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Junior Subordinated Debenture shall not be entitled to any
benefit under the Indenture, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Junior Subordinated Debenture are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
A-2
<PAGE> 63
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: ENTERBANK HOLDINGS, INC.
------------------
By:
------------------------------------
Chief Executive Officer
Attest:
By:
-------------------------------
Secretary
A-3
<PAGE> 64
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Junior Subordinated Debentures described in the
within-mentioned Indenture.
Dated: WILMINGTON TRUST COMPANY, as Trustee
---------------------
By:
------------------------------
Authorized Signature
A-4
<PAGE> 65
[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
____% JUNIOR SUBORDINATED DEBENTURE
(CONTINUED)
This Junior Subordinated Debenture is one of the junior subordinated
debentures of the Company (herein sometimes referred to as the "Junior
Subordinated Debentures"), specified in the Indenture, all issued under and
pursuant to a Subordinated Indenture dated as of ________________, 1999 (the
"Indenture") duly executed and delivered between the Company and WILMINGTON
TRUST COMPANY, as Trustee (the "Trustee"), to which Indenture reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Junior Subordinated Debentures. The Junior Subordinated
Debentures are limited in aggregate principal amount as specified in the
Indenture.
Because of the occurrence and continuation of a Special Event (as
defined in the Indenture), in certain circumstances, this Junior Subordinated
Debenture may become due and payable at the option of the Company at the
principal amount together with any interest accrued thereon (the "Redemption
Price"). The Redemption Price shall be paid prior to 2:00 p.m. St. Louis,
Missouri time, on the date of such redemption or at such earlier time as the
Company determines.
The Company shall have the right to redeem this Junior Subordinated
Debenture at the option of the Company, in whole or in part, from time to time,
on or after ________________, 2004, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued but unpaid interest thereon to
the date of such redemption. Any redemption pursuant to this paragraph will be
made upon not less than 30 days' nor more than 60 days' notice. If the Junior
Subordinated Debentures are only partially redeemed by the Company pursuant to
this paragraph, the Junior Subordinated Debentures will be redeemed pro rata or
by lot or by any other method utilized by the Trustee; provided that if, at the
time of redemption, the Junior Subordinated Debentures are registered as a
Global Subordinated Debenture (as defined in the Indenture), the Depositary (as
defined in the Indenture) shall determine the principal amount of such Junior
Subordinated Debentures held by each Junior Subordinated Debenture Holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Junior Subordinated Debenture in
part only, a new Junior Subordinated Debenture for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
In case an Event of Default (as defined in the Indenture), shall have
occurred and be continuing, the principal of all of the Junior Subordinated
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Junior Subordinated
A-5
<PAGE> 66
Debentures at the time Outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Junior Subordinated Debentures; provided, however, that no such
supplemental indenture shall (i) change the stated maturity of the Junior
Subordinated Debentures except as provided in the Indenture, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the Holder of each Junior Subordinated
Debenture so affected, or (ii) reduce the aforesaid percentage of Junior
Subordinated Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each Junior
Subordinated Debenture then Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Junior Subordinated Debentures at the time Outstanding,
on behalf of all of the Holders of the Junior Subordinated Debentures, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture, and its consequences,
except a default in the payment of the principal of or interest on any of the
Junior Subordinated Debentures. Any such consent or waiver by the registered
Holder of this Junior Subordinated Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Junior Subordinated Debenture and of any Junior
Subordinated Debenture issued in exchange herefor or in place hereof (whether
by registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Junior Subordinated
Debenture.
No reference herein to the Indenture and no provision of this Junior
Subordinated Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of
and interest on this Junior Subordinated Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of the
Junior Subordinated Debentures and from time to time to extend the interest
payment period of such Junior Subordinated Debentures for up to 20 consecutive
quarters (an "Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Junior Subordinated Debentures
to the extent that payment of such interest is enforceable under applicable
law). Before the termination of any such Extended Interest Payment Period, the
Company may further extend such Extended Interest Payment Period, provided that
such Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the Stated
Maturity. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
The Company has agreed that if at any time (a) there shall have
occurred any event of which the Company has actual knowledge that (i) with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default and (ii) in respect to which the Company shall not have taken
A-6
<PAGE> 67
reasonable steps to cure, or (b) the Company shall have given notice of its
election of an Extended Interest Payment Period as provided herein and shall
not have rescinded such notice, or such Extended Interest Payment Period, or
any extension thereof, shall be continuing; or (c) while the Junior
Subordinated Debentures are held by the Trust, the Company shall be in default
with respect to its payment of any obligation under the Preferred Securities
Guarantee, then the Company will 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, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including the Junior Subordinated Debentures)
that rank pari passu with or junior in interest to the Junior Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu or junior in interest to the Junior Subordinated
Debentures (other than (A) dividends or distributions in common stock, (B) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future or the redemption or repurchase of any such rights pursuant thereto, (C)
payments under the Preferred Securities Guarantee and (D) purchases of common
stock related to the issuance of common stock or rights under any of the
Company's benefit plans for its directors, officers or employees).
As provided in the Indenture and subject to certain limitations
therein set forth, this Junior Subordinated Debenture is transferable by the
registered Holder hereof on the Securities Register of the Company, upon
surrender of this Junior Subordinated Debenture for registration of transfer at
the office or agency of the Trustee accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Junior Subordinated
Debentures of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this Junior
Subordinated Debenture, the Company, the Trustee, any paying agent and the
Securities Registrar (as defined in the Indenture) may deem and treat the
Registered Holder hereof as the absolute owner hereof (whether or not this
Junior Subordinated Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Securities
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Securities
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Junior Subordinated Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
whether by virtue
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<PAGE> 68
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Junior Subordinated Debentures are issuable only in registered
form without coupons in denominations of $10 and any integral multiple thereof.
All terms used in this Junior Subordinated Debenture that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
A-8
<PAGE> 1
EXHIBIT 4.8
- --------------------------------------------------------------------------------
PREFERRED SECURITIES GUARANTEE AGREEMENT
ENTERBANK HOLDINGS, INC.
and
WILMINGTON TRUST COMPANY
Dated: _______________, 1999
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I - DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . 1
1.01 DEFINITIONS AND INTERPRETATIONS. . . . . . . . . . . .1
ARTICLE II - TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . .5
2.01 TRUST INDENTURE ACT; APPLICATION . . . . . . . . . . .5
2.02 LISTS OF HOLDERS OF SECURITIES . . . . . . . . . . . .5
2.03 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE . . . . . .5
2.04 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE. . . .6
2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT . . .6
2.06 EVENTS OF DEFAULT; WAIVER. . . . . . . . . . . . . . .6
2.07 EVENT OF DEFAULT; NOTICE . . . . . . . . . . . . . . .6
2.08 CONFLICTING INTERESTS. . . . . . . . . . . . . . . . .6
ARTICLE III - POWERS, DUTIES AND RIGHTS OF PREFERRED
GUARANTEE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . .7
3.01 POWERS AND DUTIES OF THE PREFERRED GUARANTEE
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . .7
3.02 CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE. . . . .9
3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. . . . . . . . . . . . . . . . . . . . . . 11
3.04 COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . 11
ARTICLE IV - PREFERRED GUARANTEE TRUSTEE . . . . . . . . . . . . . 11
4.01 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY . . . . . . 11
4.02 APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED
GUARANTEE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . 13
5.01 GUARANTEE. . . . . . . . . . . . . . . . . . . . . . 13
5.02 WAIVER OF NOTICE AND DEMAND. . . . . . . . . . . . . 13
5.03 OBLIGATIONS NOT AFFECTED . . . . . . . . . . . . . . 13
5.04 RIGHTS OF HOLDERS. . . . . . . . . . . . . . . . . . 14
5.05 GUARANTEE OF PAYMENT . . . . . . . . . . . . . . . . 14
5.06 SUBROGATION. . . . . . . . . . . . . . . . . . . . . 15
5.07 INDEPENDENT OBLIGATIONS. . . . . . . . . . . . . . . 15
ARTICLE VI - LIMITATION OF TRANSACTIONS; SUBORDINATION. . . . . . . 15
6.01 LIMITATION OF TRANSACTIONS . . . . . . . . . . . . . 15
6.02 RANKING. . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VII - TERMINATION. . . . . . . . . . . . . . . . . . . . . .16
7.01 TERMINATION. . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII - MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 16
8.01 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . 16
8.02 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 16
8.03 NOTICES. . . . . . . . . . . . . . . . . . . . . . . 16
8.04 BENEFIT. . . . . . . . . . . . . . . . . . . . . . . 17
8.05 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 17
</TABLE>
ii
<PAGE> 4
CROSS REFERENCE TABLE
<TABLE>
<CAPTION>
Section of Trust Indenture Act of 1939, Section of Guarantee Agreement
as Amended
<S> <C>
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 1.01, 3.06, 5.04
316(b) 5.03
316(c) 8.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
</TABLE>
iii
<PAGE> 5
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of ________________, 1999, is executed and delivered by ENTERBANK HOLDINGS,
INC., a Delaware corporation (the "Guarantor"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as trustee (the "Preferred Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of EBH CAPITAL TRUST I, a Delaware
statutory business trust ("EBH Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement") dated as of _____________, 1999 among the trustees of EBH
Trust named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of EBH Trust, EBH Trust is
issuing on the date hereof__________ preferred securities, having an aggregate
liquidation amount of $_______________________ designated the __% Cumulative
Trust Preferred Securities (the "Preferred Securities"); 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 in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 DEFINITIONS AND INTERPRETATIONS. In this Preferred Securities
Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.01;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
<PAGE> 6
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the State of Missouri are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Preferred Guarantee Trustee's Corporate Trust Office is closed for business.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debt" means with respect to any person, whether recourse is to all or
a portion of the assets of such person and whether or not contingent: (a) every
obligation of such person for money borrowed; (b) every obligation of such
person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such person; (d) every obligation of such person 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 such person; and (f) every
obligation of the type referred to in clauses (a) through (e) of another person
and all dividends of another person the payment of which, in either case, such
person has guaranteed or for which such person is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by EBH Trust: (a) any accrued and unpaid Distributions (as defined
in the Trust Agreement) that are required to be paid on such Preferred
Securities to the extent EBH Trust shall have funds available therefor, (b) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price") to the extent EBH Trust has funds available
therefor, with respect to any Preferred Securities
2
<PAGE> 7
called for redemption by EBH Trust, and (c) upon a voluntary or involuntary
dissolution, winding-up or termination of EBH Trust (other than in connection
with the distribution of Junior Subordinated Debentures to the Holders in
exchange for Preferred Securities as provided in the Trust Agreement), the
lesser of (i) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
EBH Trust shall have funds available therefor, and (ii) the amount of assets of
EBH Trust remaining available for distribution to Holders in liquidation of EBH
Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of EBH 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 or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of
_______________, 1999, among the Guarantor (the "Debenture Issuer") and
Wilmington Trust Company, as trustee, and any indenture supplemental thereto
pursuant to which the Junior Subordinated Debentures are to be issued to the
Property Trustee (as defined in the Trust Agreement) of EBH Trust.
"Junior Subordinated Debentures" means the series of junior
subordinated deferrable interest debt securities of the Guarantor designated the
__% Junior Subordinated Debentures due 2029 held by the Property Trustee of EBH
Trust.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holders of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
3
<PAGE> 8
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"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 Guarantee Trustee" means Wilmington Trust Company, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee with direct responsibility for the administration of this
Preferred Securities Guarantee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Senior and Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Guarantor
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of the Guarantor, whether incurred on or prior to the date
of the Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Preferred
Securities Guarantee or to other Debt which is pari passu with, or subordinated
to, the Preferred Securities Guarantee; provided, however, that Senior and
Subordinated Debt shall not be deemed to include (a) any Debt of the Guarantor
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 Guarantor, (b) any Debt of the Guarantor to any of its subsidiaries, (c) any
Debt to any employee of the Guarantor, (d) any Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Junior
4
<PAGE> 9
Subordinated Debentures as a result of the subordination provisions of the
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of the subordination provisions to which such Debt is
subject, (e) the Junior Subordinated Debentures, and (f) any other debt
securities issued pursuant to the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of
this Preferred Securities Guarantee and shall, to the extent
applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
2.02 LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") (i) on or before January 15
and July 15 of each year, and (ii) at any other time within 30 days of
receipt by the Guarantor of a written request for a List of Holders, as
of a date no more than 14 days before such List of Holders is given to
the Preferred Guarantee Trustee provided, that the Guarantor shall not
be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to
the Preferred Guarantee Trustee by the Guarantor. The Preferred
Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
2.03 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE. On or before July 31
of each year, the Preferred Guarantee Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Preferred Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
5
<PAGE> 10
2.04 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE. The Guarantor
shall provide to the Preferred Guarantee Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act, if any, and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The Guarantor
shall provide to the Preferred Guarantee Trustee such evidence of compliance
with the conditions precedent, if any, provided for in this Preferred Securities
Guarantee 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.
2.06 EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on behalf of the
Holders of all of the Preferred Securities, 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 Preferred Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
2.07 EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of
all Events of Default actually known to a Responsible Officer of the
Preferred Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, the Preferred
Guarantee Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Preferred Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee
Trustee shall have received a properly addressed written notice, or of
which a Responsible Officer of the Preferred Guarantee Trustee charged
with the administration of the Trust Agreement shall have obtained
actual knowledge.
2.08 CONFLICTING INTERESTS. The Trust Agreement shall be deemed to be
specifically described in this Preferred Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
6
<PAGE> 11
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
3.01 POWERS AND DUTIES OF THE PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Guarantee Trustee shall not
transfer this Preferred Securities Guarantee to any Person except a
Holder of Preferred Securities exercising such Holder's rights pursuant
to Section 5.04(b) or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right,
title and interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is
continuing, the Preferred Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders of the
Preferred Securities.
(c) The Preferred Guarantee 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 Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to
Section 2.06) and is actually known to a Responsible Officer of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred
Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions
of this Preferred Securities Guarantee, and the Preferred
Guarantee Trustee shall not be liable
7
<PAGE> 12
except for the performance of such duties and obligations
as are specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be
read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred 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 Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved that
the Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred 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 Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred 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 Preferred Guarantee 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 Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
8
<PAGE> 13
3.02 CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may conclusively rely
upon, and shall be fully protected in acting or refraining from
acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred
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, shall be promptly delivered by the
Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
re-recording, re-filing or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of
its Affiliates and may include any of its employees. The Preferred
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the
Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Guarantee Trustee's
agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested
9
<PAGE> 14
by the Preferred Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(vi) shall be taken to relieve
the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers
vested in it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to
the authority of the Preferred Guarantee Trustee to so act or as
to its compliance with any of the terms and provisions of this
Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the
Preferred Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation amount of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and
(C) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred 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 Preferred 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 Preferred Guarantee Trustee shall be construed to be a duty.
10
<PAGE> 15
3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE. The
recitals contained in this Preferred Securities Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
3.04 COMPENSATION AND REIMBURSEMENT.
(a) The Guarantor covenants and agrees to pay to the Preferred
Guarantor Trustee, and the Preferred Guarantor Trustee shall be entitled
to, such reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust), as the Guarantor and the Preferred Guarantor Trustee may
from time to time agree in writing, for all services rendered by it in
the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Preferred
Guarantee Trustee, and, except as otherwise expressly provided herein,
the Guarantor will pay or reimburse the Preferred Guarantor Trustee upon
its request for all reasonable expenses, disbursements and advances
incurred or made by the Preferred Guarantor Trustee in accordance with
any of the provisions of this Preferred Securities Guarantee (including
the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Guarantor also covenants to indemnify the Preferred Guarantor
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Preferred Guarantor
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claims of liability in the premises.
(b) When the Preferred Guarantor Trustee incurs expenses or
renders services after an Event of Default specified in Section
7.01(iv), (v) or (vi) of the Indenture 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.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
4.01 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
11
<PAGE> 16
(ii) be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.01(a)(ii),
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.01(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set
out in Section 4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
4.02 APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEES.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.02(a) until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by instrument in
writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee
Trustee.
12
<PAGE> 17
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Preferred Guarantee Trustee may petition any
court of competent jurisdiction for appointment of a Successor Preferred
Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred
Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to
this Section 4.02, the Guarantor shall pay to the Preferred Guarantee
Trustee all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
5.01 GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by EBH Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that EBH Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
EBH Trust to pay such amounts to the Holders.
5.02 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Preferred Securities Guarantee and of any liability
to which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against EBH 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.
5.03 OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the Performance or observance by EBH Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by EBH Trust;
(b) the extension of time for the payment by EBH Trust of all or
any portion of the Distributions, 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
13
<PAGE> 18
(other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Junior
Subordinated Debentures or any extension of the maturity date of the
Junior Subordinated Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of EBH 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, EBH
Trust or any of the assets of EBH 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, it
being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
5.04 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place
of conducting of any proceeding for any remedy available to the
Preferred Guarantee Trustee in respect of this Preferred Securities
Guarantee or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under
this Preferred Securities Guarantee, without first instituting a legal
proceeding against EBH Trust, the Preferred Guarantee Trustee or any
other Person.
5.05 GUARANTEE OF PAYMENT. This Preferred Securities Guarantee creates a
Guarantee of payment and not of collection.
14
<PAGE> 19
5.06 SUBROGATION. The Guarantor shall be subrogated to all (if any)
rights of the Holders of Preferred Securities against EBH Trust in respect of
any amounts paid to such Holders by the Guarantor under this Preferred
Securities Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Preferred Securities Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
5.07 INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of EBH 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 Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section
5.03.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
6.01 LIMITATION OF TRANSACTIONS. So long as any Preferred Securities
remain outstanding, if there shall have occurred and be continuing an Event of
Default or an event of default under the Trust Agreement, then (a) the Guarantor
shall not declare or pay any dividend or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its capital
stock, (b) the Guarantor shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Guarantor (including other Junior Subordinated Debentures) which rank pari
passu with or junior in interest to the Junior Subordinated Debentures or (c)
the Guarantor shall not make any guarantee payments with respect to any
guarantee by the guarantor of the debt securities of any subsidiary of the
Guarantor if such guarantee ranks pari passu or junior in interest to the Junior
Subordinated Debentures (other than (i) dividends or distributions in common
stock, (ii) any declaration of a dividend in connection with the implementation
of a shareholders' rights plan, or the issuance of stock under any such plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(iii) payments under this Preferred Securities Guarantee and (iv) purchases of
common stock related to the issuances of common stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees).
6.02 RANKING. This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank subordinate and junior in
right of payment to all Senior and Subordinated Debt of the Guarantor.
15
<PAGE> 20
ARTICLE VII
TERMINATION
7.01 TERMINATION. This Preferred Securities Guarantee shall terminate
upon (a) full payment of the Redemption Price of all Preferred Securities, (b)
upon full payment of the amounts payable in accordance with the Trust Agreement
upon liquidation of EBH Trust or (c) upon distribution of the Junior
Subordinated Debentures to the Holders of the Preferred Securities.
Notwithstanding the foregoing, this Preferred Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
MISCELLANEOUS
8.01 SUCCESSORS AND ASSIGNS. All guaranties and agreements contained in
this Preferred Securities Guarantee 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.
8.02 AMENDMENTS. Except with respect to any changes that do not
materially adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
liquidation amount of the Preferred Securities. The provisions of Article VI of
the Trust Agreement with respect to meetings of Holders of the Securities apply
to the giving of such approval.
8.03 NOTICES. All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other
address as the Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
WILMINGTON TRUST COMPANY
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
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<PAGE> 21
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Preferred Securities):
ENTERBANK HOLDINGS, INC.
150 North Meramec
Clayton, Missouri 63105
Attention: Chief Executive Officer
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of EBH Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
8.04 BENEFIT. This Preferred Securities Guarantee is solely for the
benefit of the Holders of the Preferred Securities and, subject to Section
3.01(a), is not separately transferable from the Preferred Securities.
8.05 GOVERNING LAW. THIS PREFERRED SECURITIES GUARANTEE, INCLUDING THE
IMMUNITIES AND THE STANDARD OF CARE OF THE TRUSTEE, SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MISSOURI.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year first
above written.
ENTERBANK HOLDINGS, INC.,
as Guarantor
By:
---------------------------------------
Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
17
<PAGE> 1
EXHIBIT 5.1
[ARMSTRONG TEASDALE LLP LETTERHEAD]
September 24, 1999
Enterbank Holdings, Inc. EBH Capital Trust I
150 N. Meramec c/o Enterbank Holdings, Inc.
Clayton, MO 63105 150 N. Meramec
Clayton, MO 63105
Re: Registration Statement on Form S-3 of Enterbank Holdings, Inc.
and EBH Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to Enterbank Holdings, Inc., a Delaware
corporation (the "Company"), and EBH Capital Trust I, a Delaware statutory
business trust (the "Trust"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") to be filed
by the Company and the Trust with the Securities and Exchange Commission (the
"SEC") for the purpose of registering under the Securities Act of 1933, as
amended, preferred securities (the "Preferred Securities") of the Trust,
subordinated debentures (the "Subordinated Debentures") of the Company and the
guarantee of the Company with respect to the Preferred Securities (the
"Guarantee").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate
of trust (the "Certificate of Trust") filed by the Trust with the Secretary of
State of the State of Delaware on September 9, 1999; (ii) the Trust Agreement,
dated as of September 9, 1999, with respect to the Trust; (iii) the form of the
Amended and Restated Trust Agreement with respect to the Trust; (iv) the form
of the Preferred Securities of the Trust; (v) the form of Guarantee between the
Company and Wilmington Trust Company, as trustee; (vi) the form of Subordinated
Debentures; and (vii) the form of the indenture (the "Indenture"), between the
Company and Wilmington Trust Company, as trustee, in each case in the form
filed as an exhibit to the Registration Statement. We have also examined
originals or copies, certified, or otherwise identified to our satisfaction, of
such other documents, certificates, and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as copies and the authenticity of the originals of
such copies. In examining documents executed by parties other than the Company
<PAGE> 2
ARMSTRONG TEASDALE LLP Attorneys at Law
- -------------------------------------------------------------------------------
Enterbank Holdings, Inc.
EBH Capital Trust I
September 24, 1999
Page 2
or the Trust, we have assumed that such parties had the power, corporate or
otherwise, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or otherwise,
and execution and delivery by such parties of such documents and that, except
as set forth in paragraphs (1) and (2) below, such documents constitute valid
and binding obligations of such parties. In addition, we have assumed that the
Amended and Restated Trust Agreement of the Trust, the Preferred Securities of
the Trust, the Guarantee, the Subordinated Debentures and the Indenture, when
executed, will be executed in substantially the form reviewed by us. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers, trustees, and other representatives of the
Company, the Trust, and others.
We are members of the bar of the State of Missouri, and our opinions
expressed herein are limited to the laws of the State of Missouri and the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing and to other qualifications
and limitations set forth herein, we are of the opinion that:
1. After the Indenture has been duly executed and delivered, the
Subordinated Debentures, when duly executed, delivered, authenticated and
issued in accordance with the Indenture and delivered and paid for as
contemplated by the Registration Statement, 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, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of equity
regardless of whether enforceability is considered in a proceeding at law or in
equity.
2. The Guarantee, when duly executed and delivered by the parties
thereto, will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of equity
regardless of whether enforceability is considered in a proceeding at law or in
equity.
<PAGE> 3
ARMSTRONG TEASDALE LLP Attorneys at Law
- -------------------------------------------------------------------------------
Enterbank Holdings, Inc.
EBH Capital Trust I
September 24, 1999
Page 3
We hereby consent to the use of our name under the caption "VALIDITY
OF SECURITIES" in the Prospectus forming a part of the Registration Statement
and to the inclusion of this legal opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
ARMSTRONG TEASDALE LLP
<PAGE> 1
EXHIBIT 5.2
[RICHARDS, LAYTON & FINGER LETTERHEAD]
September 24, 1999
EBH Capital Trust
c/o Enterbank Holdings, Inc.
150 North Meramec
St. Louis, Missouri 63105
Re: EBH Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Enterbank Holdings, Inc.,
a Delaware corporation (the "Company"), and EBH Capital Trust I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the Secretary
of State on September 9, 1999, as amended by the Restated Certificate of Trust,
as filed with the Secretary of State on September 17, 1999;
(b) The Trust Agreement of the Trust, dated as of September 9, 1999,
among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred beneficial interests in the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by the Company and the Trust
with the Securities and Exchange Commission on September 24, 1999;
<PAGE> 2
EBH Capital Trust I
September 24, 1999
Page 2
(d) A form of Amended and Restated Trust Agreement for the Trust, to
be entered into between the Company, the trustees of the Trust named therein,
and the holders, from time to time, of the undivided beneficial interests in
the assets of the Trust (including Exhibits C and D thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated September 23,
1999, obtained from the Secretary of State.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate of Trust are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1 below, the
due organization or due formation, as the case may be, and valid existence in
good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Preferred Security is to be issued by the Trust (collectively,
the "Preferred Security Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for such Preferred Security, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware, and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating
thereto. Our opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
<PAGE> 3
EBH Capital Trust I
September 24, 1999
Page 3
2. The Preferred Securities of the Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading ["Legal Matters"] in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
EAM/rmc
<PAGE> 1
EXHIBIT 8.1
[ARMSTRONG TEASDALE LLP LETTERHEAD]
September 24, 1999
Enterbank Holdings, Inc. EBH Capital Trust I
150 N. Meramec c/o Enterbank Holdings, Inc.
Clayton, MO 63105 150 N. Meramec
Clayton, MO 63105
Re: Preferred Securities of EBH Capital Trust I
Ladies and Gentlemen:
We have acted as special tax counsel for Enterbank Holdings, Inc. (the
"Company"), a Delaware corporation, and EBH Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware (Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801,
et. seq.), in connection with the sale, pursuant to an underwriting agreement to
be entered into among the Company, the Trust, and the underwriter named
therein, of trust preferred securities (the "Preferred Securities") (liquidation
amount $8 per Preferred Security), which will represent undivided beneficial
interests in the assets of the Trust.
The Preferred Securities will be guaranteed by the Company with respect
to distributions and payments upon liquidation, redemption, and otherwise
pursuant to the guarantee agreement, to be entered into, between the Company and
Wilmington Trust Company, as trustee, for the benefit of the holders of the
Preferred Securities.
In connection with the issuance of the Preferred Securities, the Trust
will also issue common securities (the "Common Securities") (liquidation amount
$8 per Common Security), which will represent undivided beneficial interests in
the assets of the Trust.
The proceeds from the sale of the Preferred Securities and the Common
Securities are to be used by the Trust to purchase junior subordinated
debentures (the "Junior Subordinated Debentures"), to be issued by the Company.
The Preferred Securities and the Common Securities are to be issued pursuant to
the Amended and Restated Trust Agreement (the "Trust Agreement"), to be entered
into among the Company, as depositor, Wilmington Trust Company, as Delaware
trustee and as property trustee, and the administrative trustees named therein.
The Junior
<PAGE> 2
Enterbank Holdings, Inc.
EBH Capital Trust I
September 24, 1999
Page 2
Subordinated Debentures are to be issued pursuant to an indenture (the
"Indenture"), to be entered into, between the Company and Wilmington Trust
Company, as trustee.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the preliminary
Prospectus (the "Prospectus") in the form included as part of the Registration
Statement filed with the Securities and Exchange Commission on September 25,
1999 (the "Registration Statement"); (ii) the Certificate of Trust filed with
the Secretary of State of the State of Delaware on September 9, 1999, by the
Delaware Trustee; (iii) the form of the Trust Agreement including the
designation of the terms of the Preferred Securities; (iv) the form of the
Preferred Securities and a specimen certificate thereof; (v) the form of the
Guarantee Agreement; (vi) the form of the Indenture; (vii) the form of Junior
Subordinated Debentures and a specimen certificate thereof; (viii) the form of
Common Securities and a specimen certificate thereof; and (ix) the form of the
Underwriting Agreement. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and the
Trust and such agreements, certificates of public officials, certificates of
officers, trustees or other representatives of the Company, the Trust and
others, as applicable, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies, and the
authenticity of the originals of such latter documents. In making our
examination of documents executed, or to be executed by parties other than the
Company or the Trust, we have assumed that such parties had, or will have, the
power, corporate or other, to enter into and perform all obligations thereunder,
and we have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and that such documents constitute, or will constitute, valid and binding
obligations of such parties. As to any facts material to the opinions expressed
herein which were not independently established or verified, we have relied upon
oral or written statements and representations of officers, trustees and other
representatives of the Company, the Trust, and others.
In rendering our opinion, we have participated in the preparation of
the preliminary Prospectus. Our opinion is conditioned on, among other things,
the initial and continuing accuracy of the facts, information, covenants,
representations, and assumptions set forth in the documents referred to above
and the statements and representations made by the Company and the Trust. In
rendering our opinion, we have considered the provisions of the Internal Revenue
Code of 1986, as amended, Treasury regulations (temporary, and final)
promulgated thereunder, judicial
<PAGE> 3
Enterbank Holdings, Inc.
EBH Capital Trust I
September 24, 1999
Page 3
decisions, and Internal Revenue Service rulings all as of the date hereof, and
all of which are subject to change, which changes may be retroactively applied.
A change in the authorities upon which our opinion is based could affect our
conclusions. There can be no assurance, moreover, that any of the opinions
expressed herein will be accepted by the Internal Revenue Service or, if
challenged, by a court.
Based solely upon the foregoing, we are of the opinion that under
current United States federal income tax law:
(1) The Trust will be classified as a grantor trust and not
as an association taxable as a corporation. Accordingly, each holder of
Preferred Securities will generally be treated as the owner of an
undivided interest in the Junior Subordinated Debentures.
(2) The Junior Subordinated Debentures will be classified as
indebtedness of the Company.
Although the discussion set forth under the heading "Material Federal
Income Tax Consequences" in the Prospectus for the offering of Preferred
Securities filed as part of the Registration Statement does not purport to
discuss all possible United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities, in our opinion,
such discussion constitutes, in all material respects, a fair and accurate
summary of the United States federal income tax consequences of the purchase,
ownership and disposition of the Preferred Securities, based upon current laws
as they relate to holders described therein. It is possible that contrary
positions with regard to the purchase, ownership and disposition of the
Preferred Securities may be taken by the Internal Revenue Service and that a
court may agree with such contrary positions.
Except as set forth above, we express no opinion to any party as to the
tax consequences, whether United States federal, state, local or foreign, of the
issuance of the Junior Subordinated Debentures, the Preferred Securities, the
Common Securities, or any transactions related to or contemplated by such
issuance. In connection with the sale of the Preferred Securities pursuant to
the Registration Statement of the Company dated September 25, 1999, as filed
with the Securities and Exchange Commission on September 25, 1999 we are
furnishing this opinion to you solely for your benefit. This opinion is not to
be used, circulated, quoted, or otherwise referred to for any other purpose
without our written permission.
<PAGE> 4
Enterbank Holdings, Inc.
EBH Capital Trust I
September 24, 1999
Page 4
The opinions expressed herein are subject to, and conditioned upon,
reconfirmation and delivery of these opinions at the time of the closing of the
offering of Preferred Securities. This opinion is expressed as of the date
hereof, and we disclaim any undertaking to advise you of changes of the facts
stated or assumed herein or any subsequent changes in applicable law .
We consent to the filing of this opinion as Exhibit 8.1 to the
Registration Statement and to the reference to Armstrong Teasdale LLP therein
under the caption "Legal Matters." In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules or regulations
of the Securities and Exchange Commission promulgated thereunder .
Very truly yours,
ARMSTRONG TEASDALE LLP
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six months ended June 30 Year Ended December 31
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
(dollars in thousands, except per share date)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Pre-tax earnings from operations 2,421 2,145 4,861 3,539 2,733 2,045 1,608
Fixed charges 6,777 5,787 12,576 8,992 5,814 5,091 2,770
Earnings as adjusted (A) 9,198 7,932 17,437 12,531 8,547 7,136 4,378
Fixed charges:
Rent Expense (B) 367 349 707 410 245 204 200
Interest expense on deposits (C) 6,248 5,438 11,802 8,579 5,554 4,887 2,570
Interest expense on borrowings (D) 162 -- 67 3 15 -- --
Ratio of earnings to fixed charges
(A) divided by (B)+(C)+(D) 1.36 1.37 1.39 1.39 1.47 1.40 1.58
(A)-(C) divided by (B)+(D) 5.58 7.15 7.28 9.57 11.51 11.02 9.04
</TABLE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Enterbank Holdings, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-3 of Enterbank Holdings, Inc. of our report dated January 29, 1999 relating to
the consolidated balance sheets of Enterbank Holdings, Inc. and subsidiaries as
of December 31, 1998 and 1997, and the related consolidated statements of
income, shareholders' equity, cash flows, and comprehensive income for each of
the years in the three-year period ended December 31, 1998, which report appears
in the December 31, 1998 annual report on Form 10-K of Enterbank Holdings, Inc.
/s/ KPMG, LLP
St. Louis, Missouri
September 24, 1999
<PAGE> 1
\ EXHIBIT 25.1
Registration No.:
================================================================================
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)___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ENTERBANK HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 43-1706259
(State of incorporation) (I.R.S. employer identification no.)
150 North Meramec
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
___% Subordinated Debentures of Enterbank Holdings, Inc.
(Title of the indenture securities)
-1-
<PAGE> 2
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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ PATRICIA EVANS By: /s/ DONALD G. MACKELCAN
----------------------- -----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
-2-
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
<PAGE> 5
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
-2-
<PAGE> 6
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such
-3-
<PAGE> 7
securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges
or deeds of trust or mortgages of or upon the whole or any
part of the property held or owned by the Corporation, and
to sell and pledge such bonds, as and when the Board of
Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal
property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
-4-
<PAGE> 8
paragraph) be nowise limited or restricted by reference to
or inference from the terms of any other clause of this or
any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board
of Directors each of said series to be distinctly designated. All
shares of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time
outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers
and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions
of such series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of
-5-
<PAGE> 9
any series of the same or any other class or classes of
stock of the Corporation and the terms and conditions of
such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article Fourth), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
Fourth), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article Fourth), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant
-6-
<PAGE> 10
to section (b) of this Article Fourth, each holder of Common
Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or series,
or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
-7-
<PAGE> 11
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than five
nor more than twenty-five as fixed from time to time by vote of a
majority of the whole Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that the
number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative
vote of the holders of two-thirds or more of the outstanding shares
of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of
-8-
<PAGE> 12
directors; provided, however, that if less than 21 days' notice of
the meeting is given to stockholders, such written notice shall be
delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following
the day on which notice of the meeting was mailed to stockholders.
Notice of nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
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<PAGE> 13
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws, alterations or
repeal may be adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
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<PAGE> 14
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or
any Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this
Article Fifteenth shall mean any transaction which is
referred to in any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of
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<PAGE> 15
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article Fifteenth on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
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<PAGE> 16
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws), the affirmative vote of the
holders of at least two-thirds of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles Fifth, Thirteenth, Fifteenth or Sixteenth of this Charter
or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
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<PAGE> 19
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
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<PAGE> 20
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business for
and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall direct
the disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose, and
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary
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<PAGE> 21
to the provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
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<PAGE> 22
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction of
its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors from
its own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
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<PAGE> 23
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the
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<PAGE> 24
Company and for the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall have general
supervision of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and perform
such other duties as may be assigned to him from time to time by the Board of
Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice
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<PAGE> 25
President, however denominated by the Board of Directors and countersigned by
the Secretary or Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall recite that the
stock represented thereby is transferrable only upon the books of the Company by
the holder thereof or his attorney, upon surrender of the certificate properly
endorsed. Any certificate of stock surrendered to the Company shall be cancelled
at the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have
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<PAGE> 26
full power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee, agent
or in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same force
and validity as though expressly authorized by the Board of Directors and/or the
Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses
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<PAGE> 27
incurred by a Director or officer in his capacity as a Director or officer in
advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or officer is
not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
-10-
<PAGE> 28
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 24, 1999 By: /s/ DONALD G. MACKELCAN
--------------------------------
Name: Donald G. MacKelcan
Title: Vice President
-1-
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has not
been approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE , at the close of business on June 30, 1999.
------------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..................... 207,947
Interest-bearing balances.................................. 0
Held-to-maturity securities.............................................................................. 37,680
Available-for-sale securities............................................................................ 1,598,933
Federal funds sold and securities purchased under agreements to resell................................... 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 4,237,557
LESS: Allowance for loan and lease losses............ 70,233
LESS: Allocated transfer risk reserve................ 0
Loans and leases, net of unearned income, allowance, and reserve.............. 4,167,324
Assets held in trading accounts.......................................................................... 0
Premises and fixed assets (including capitalized leases)................................................. 141,415
Other real estate owned.................................................................................. 922
Investments in unconsolidated subsidiaries and associated companies...................................... 1,227
Customers' liability to this bank on acceptances outstanding............................................. 0
Intangible assets........................................................................................ 5,179
Other assets............................................................................................. 104,101
Total assets............................................................................................. 6,445,094
</TABLE>
CONTINUED ON NEXT PAGE
-1-
<PAGE> 30
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices...................................................................................... 4,574,509
Noninterest-bearing ............... 992,436
Interest-bearing................... 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................... 344,719
Demand notes issued to the U.S. Treasury................................................................. 83,802
Trading liabilities (from Schedule RC-D)................................................................. 0
Other borrowed money:.................................................................................... ///////
With original maturity of one year or less............................. 860,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding................................................. 0
Subordinated notes and debentures........................................................................ 0
Other liabilities (from Schedule RC-G)................................................................... 80,279
Total liabilities........................................................................................ 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................ 0
Common Stock............................................................................................. 500
Surplus (exclude all surplus related to preferred stock)................................................. 62,118
Undivided profits and capital reserves................................................................... 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................... (16,242)
Total equity capital..................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital...................................... 6,445,094
</TABLE>
-2-
<PAGE> 1
EXHIBIT 25.2
Registration No.:
================================================================================
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)
-----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ENTERBANK HOLDINGS, INC.
EBH CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
43-1706259
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
150 North Meramec
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
___% Preferred Securities of EBH Capital Trust I
(Title of the indenture securities)
<PAGE> 2
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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ PATRICIA EVANS By: /s/ DONALD G. MACKELCAN
---------------------------------- -------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
-2-
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
<PAGE> 5
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
-2-
<PAGE> 6
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such
-3-
<PAGE> 7
securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by pledges
or deeds of trust or mortgages of or upon the whole or any
part of the property held or owned by the Corporation, and
to sell and pledge such bonds, as and when the Board of
Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal
property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
-4-
<PAGE> 8
paragraph) be nowise limited or restricted by reference to
or inference from the terms of any other clause of this or
any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board
of Directors each of said series to be distinctly designated. All
shares of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time
outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers
and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions
of such series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of
-5-
<PAGE> 9
any series of the same or any other class or classes of
stock of the Corporation and the terms and conditions of
such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article Fourth), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
Fourth), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article Fourth), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant
-6-
<PAGE> 10
to section (b) of this Article Fourth, each holder of Common
Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or series,
or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
-7-
<PAGE> 11
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than five
nor more than twenty-five as fixed from time to time by vote of a
majority of the whole Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that the
number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative
vote of the holders of two-thirds or more of the outstanding shares
of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of
-8-
<PAGE> 12
directors; provided, however, that if less than 21 days' notice of
the meeting is given to stockholders, such written notice shall be
delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following
the day on which notice of the meeting was mailed to stockholders.
Notice of nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
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<PAGE> 13
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws, alterations or
repeal may be adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
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<PAGE> 14
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or
any Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this
Article Fifteenth shall mean any transaction which is
referred to in any one or more of clauses (A) through
(E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of
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<PAGE> 15
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article Fifteenth on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
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<PAGE> 16
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws), the affirmative vote of the
holders of at least two-thirds of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles Fifth, Thirteenth, Fifteenth or Sixteenth of this Charter
or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
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<PAGE> 19
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
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<PAGE> 20
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of
not more than nine members who shall be selected by the Board of Directors from
its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a quorum
for the transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company, and
shall direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs and
business of the Company by its directors and officers as contemplated by these
By-Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that Committee
for the full conduct and management of the affairs and business of the Company
in accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the event
of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time for
that purpose, and
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<PAGE> 21
any provisions of these By-Laws (other than this Section) and any resolutions
which are contrary to the provisions of this Section or to the provisions of any
such implementary Resolutions shall be suspended during such a disaster period
until it shall be determined by any interim Executive Committee acting under
this section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the other
provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall hold
office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust funds, in all
matters, however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members or at the call of its chairman. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own members,
none of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to the
approval of the Board of Directors; it shall consider all matters brought to its
attention by the officer in charge of the Audit Division, review all reports of
examination of the Company made by any governmental agency or such independent
auditor employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
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<PAGE> 22
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall constitute a
quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to its
attention by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee benefits
and specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the Chairman
of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
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<PAGE> 23
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the
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<PAGE> 24
Company and for the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall have general
supervision of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and perform
such other duties as may be assigned to him from time to time by the Board of
Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice
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<PAGE> 25
President, however denominated by the Board of Directors and countersigned by
the Secretary or Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall recite that the
stock represented thereby is transferrable only upon the books of the Company by
the holder thereof or his attorney, upon surrender of the certificate properly
endorsed. Any certificate of stock surrendered to the Company shall be cancelled
at the time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued only
upon giving such security as may be satisfactory to the Board of Directors or
the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner circle
the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have
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<PAGE> 26
full power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of
this Company or in acting as executor, administrator, guardian, trustee, agent
or in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same force
and validity as though expressly authorized by the Board of Directors and/or the
Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
that the payment of expenses
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<PAGE> 27
incurred by a Director or officer in his capacity as a Director or officer in
advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or officer is
not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
-10-
<PAGE> 28
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 24, 1999 By: /s/ DONALD G. MACKELCAN
----------------------- ----------------------------
Name: Donald G. MacKelcan
Title: Vice President
-11-
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------- --------------------
Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................... 207,947
Interest-bearing balances................................ 0
Held-to-maturity securities............................................................................ 37,680
Available-for-sale securities.......................................................................... 1,598,933
Federal funds sold and securities purchased under agreements to resell................................. 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 4,237,557
LESS: Allowance for loan and lease losses........... 70,233
LESS: Allocated transfer risk reserve................. 0
Loans and leases, net of unearned income, allowance, and reserve............. 4,167,324
Assets held in trading accounts........................................................................ 0
Premises and fixed assets (including capitalized leases)............................................... 141,415
Other real estate owned................................................................................ 922
Investments in unconsolidated subsidiaries and associated companies.................................... 1,227
Customers' liability to this bank on acceptances outstanding........................................... 0
Intangible assets...................................................................................... 5,179
Other assets........................................................................................... 104,101
Total assets........................................................................................... 6,445,094
</TABLE>
CONTINUED ON NEXT PAGE
-12-
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.................................................................................... 4,574,509
Noninterest-bearing.......................... 992,436
Interest-bearing.............................. 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase............................. 344,719
Demand notes issued to the U.S. Treasury............................................................... 83,802
Trading liabilities (from Schedule RC-D)............................................................... 0
Other borrowed money:.................................................................................. ///////
With original maturity of one year or less........................ 860,000
With original maturity of more than one year....................... 43,000
Bank's liability on acceptances executed and outstanding............................................... 0
Subordinated notes and debentures...................................................................... 0
Other liabilities (from Schedule RC-G)................................................................. 80,279
Total liabilities...................................................................................... 5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus.......................................................... 0
Common Stock........................................................................................... 500
Surplus (exclude all surplus related to preferred stock)............................................... 62,118
Undivided profits and capital reserves................................................................. 412,409
Net unrealized holding gains (losses) on available-for-sale securities................................. (16,242)
Total equity capital................................................................................... 458,785
Total liabilities, limited-life preferred stock, and equity capital.................................... 6,445,094
</TABLE>
-13-
<PAGE> 1
EXHIBIT 25.3
Registration No.:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
ENTERBANK HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 43-1706259
(State of incorporation) (I.R.S. employer identification no.)
150 North Meramec
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
Guarantees of Preferred Securities of EBH Capital Trust I
(Title of the indenture securities)
-1-
<PAGE> 2
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.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of September, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ PATRICIA EVANS By: /s/ DONALD G. MACKELCAN
------------------------ -----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
-2-
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the
name of which company was changed to "Wilmington Trust Company" by an amendment
filed in the Office of the Secretary of State on March 18, A.D. 1903, and the
Charter or Act of Incorporation of which company has been from time to time
amended and changed by merger agreements pursuant to the corporation law for
state banks and trust companies of the State of Delaware, does hereby alter and
amend its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
<PAGE> 5
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of this
State, to discount bills, notes or other evidences of debt,
to receive deposits of money, or securities for money, to buy
gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy
all the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or claims,
adverse to his interest therein, and to prepare and give
certificates of title for any lands or premises in the State
of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in
all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond
or other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or
in conjunction with any other person or persons, corporation
or corporations.
-2-
<PAGE> 6
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become surety
upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within
the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in
any other trust capacity in the receiving, holding, managing,
and disposing of any and all estates and property, real,
personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by
any persons, corporations, court, officer, or authority, in
the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or be
called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to receive,
collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held
and owned by it, and to exercise in respect of all such
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and
privileges of individual owners thereof, including the right
to vote thereon; to invest and deal in and with any of the
moneys of the Corporation upon such
-3-
<PAGE> 7
securities and in such manner as it may think fit and proper,
and from time to time to vary or realize such investments; to
issue bonds and secure the same by pledges or deeds of trust
or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such
bonds, as and when the Board of Directors shall determine,
and in the promotion of its said corporate business of
investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and
any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation,
and to pay for the same in cash, stock of this Corporation,
bonds or otherwise; to hold or in any manner to dispose of
the whole or any part of the property so purchased; to
conduct in any lawful manner the whole or any part of any
business so acquired, and to exercise all the powers
necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept,
endorse, discount, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures, and
other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to purchase
or otherwise acquire, to hold, own, to mortgage, sell, convey
or otherwise dispose of, real and personal property, of every
class and description, in any State, District, Territory or
Colony of the United States, and in any foreign country or
place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall
(except where otherwise expressed in said
-4-
<PAGE> 8
paragraph) be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or any
other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as "Preferred
Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article Fourth, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions
on which, dividends, if any, on Preferred Stock of such
series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes, or series of the same or other
class of stock and whether such dividends shall be cumulative
or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of
-5-
<PAGE> 9
any series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the generality
of the foregoing include the right, voting as a series or by
itself or together with other series of Preferred Stock or
all series of Preferred Stock as a class, to elect one or
more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series
of Preferred Stock or under such circumstances and on such
conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article Fourth), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article Fourth), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b)
of this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to receive all of the remaining
assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock
held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant
-6-
<PAGE> 10
to section (b) of this Article Fourth, each holder of Common
Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
-7-
<PAGE> 11
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative vote
of the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders called for
the election of
-8-
<PAGE> 12
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be
delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following the
day on which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall be
given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
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<PAGE> 13
Twelfth: - The Corporation may transact business in any part of the
world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the
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<PAGE> 14
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article Fifteenth shall mean any transaction which
is referred to in any one or more of clauses (A)
through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article Fifteenth
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding
voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share
of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any
Interested Stockholder, and such assignment or succession
shall have occurred in the course of a transaction or series
of
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<PAGE> 15
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or
indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article Fifteenth on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether a
person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
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<PAGE> 16
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000
or more.
(e) Nothing contained in this Article Fifteenth shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles Fifth, Thirteenth,
Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
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<PAGE> 19
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such meeting
a Secretary and a Treasurer, who may be the same person, may appoint at any
time such other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting one or
more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
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<PAGE> 20
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such
disaster shall be available for the transaction of its business, such Executive
Committee shall also be empowered to exercise all of the powers reserved to the
Trust Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of
the Company in accordance with the foregoing provisions of this Section. This
By-Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for that
purpose, and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary
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<PAGE> 21
to the provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management
of its affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of
the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
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<PAGE> 22
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office
during the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure
of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with
the exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
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<PAGE> 23
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the
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<PAGE> 24
Company and for the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall have general
supervision of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and perform
such other duties as may be assigned to him from time to time by the Board of
Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the
President or any Vice
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<PAGE> 25
President, however denominated by the Board of Directors and countersigned by
the Secretary or Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall recite that the
stock represented thereby is transferrable only upon the books of the Company
by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be
issued only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver
and the Secretary or any Assistant Secretary shall have
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<PAGE> 26
full power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts,
agreements, bonds, notes, mortgages and all other instruments incident to the
business of this Company or in acting as executor, administrator, guardian,
trustee, agent or in any other fiduciary or representative capacity by any and
every method of appointment or by whatever person, corporation, court officer
or authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors or
the Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding
was authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses
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<PAGE> 27
incurred by a Director or officer in his capacity as a Director or officer in
advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or officer is
not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
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<PAGE> 28
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: September 24, 1999 By: /s/ Donald G. MacKelcan
------------------ ----------------------------
Name: Donald G. MacKelcan
Title: Vice President
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EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
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Name of Bank City
in the State of DELAWARE, at the close of business on June 30, 1999.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins........................207,947
Interest-bearing balances......................................... 0
Held-to-maturity securities................................................................................. 37,680
Available-for-sale securities.............................................................................1,598,933
Federal funds sold and securities purchased under agreements to resell......................................180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve................4,167,324
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................141,415
Other real estate owned...................................................................................... 922
Investments in unconsolidated subsidiaries and associated companies...........................................1,227
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets............................................................................................ 5,179
Other assets................................................................................................104,101
Total assets..............................................................................................6,445,094
</TABLE>
CONTINUED ON NEXT PAGE
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<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................................................4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase................................. 344,719
Demand notes issued to the U.S. Treasury.....................................................................83,802
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money:.......................................................................................///////
With original maturity of one year or less.............................860,000
With original maturity of more than one year............................43,000
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G).................................................................... 80,279
Total liabilities.........................................................................................5,986,309
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock).....................................................62,118
Undivided profits and capital reserves......................................................................412,409
Net unrealized holding gains (losses) on available-for-sale securities.....................................(16,242)
Total equity capital........................................................................................458,785
Total liabilities, limited-life preferred stock, and equity capital.......................................6,445,094
</TABLE>
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